One of these exceptions which creates a significant amount of uncertainty and confusion for the design, construction and facilities management community is that of Unjustifiable Hardship.
The Standard states that it is not unlawful to fail to comply with the requirements of the standard where compliance would impose unjustifiable hardship. The standard goes on to set out a detailed list of considerations to be undertaken in determining whether unjustifiable hardship would result in any given case.
To achieve uniformity between the legislative requirements of the Disability Discrimination Act (DDA) 1992, and that of the building legislation of each state or territory, the various states and territories have generally implemented additions to reflect these requirements. Many have also established an ‘Access Panel’ charged to make recommendations to building authorities about building access matters.
In the state of Victoria, the government has recognised the Building Commission’s Building Appeals Board (BAB) as the appropriate body to act as the Access Panel. Section 160b of the amended Building Act 2011 has also been included – Application for modification of building regulations relating to access for persons with disabilities; and recognises the BAB’s ability to make determinations in relation to unjustifiable hardship.
The Victorian BAB only accepts applications on the grounds of unjustifiable hardship and will consider these on that basis that they a presented as an alternative solution which meets the performance requirements of the Building Code of Australia (BCA). In developing solutions to present to the panel, applicants are expected and encouraged to produce solutions that still comply with the relevant performance requirements to the maximum extent possible which would not otherwise impose unjustifiable hardship.
Further to this, the BAB also identifies Action Plans as prescribed under the DDA 1992 as items of consideration in considering applications. DDA Action Plans should include provisions which:
- Devise policies and programs geared toward achieving the aims of the Act
- Facilitate the communication of these policies and programs to stakeholders within the organisation
- Provide for the review of practices within the organisation
- Set goals and targets for the practices identified in the Plan and the methods by which these will be evaluated
- Identify the key persons within the organisation who are charged with implementing the provisions identified
As of 10 May 2013, the BAB reported having heard and made a total of 25 determinations with regard to applications regarding unjustifiable hardship as it relates to access to people with a disability. Of these only eight were approved, with the majority of the approvals provided subject to additional conditions.
Two examples of approved applications include:
- To permit horizontal access width between the carriage of a platform lift and opposing obstructions to be reduced from 300 millimetres to 200 millimetres. This was determined as such, as in order to achieve the required clearance it would require the demolition and reconstruction of a significant part of the existing historic building. The Panel also felt that the access would be significantly improved by the proposal and would not be perceivably detrimental to any person. The Board also took into account alternative entries which were currently accessible. The subject building was a Church even though this does not appear to have any bearing in the determination.
- To permit the deletion of the requirement to provide access to the retail part of a building. The Panel determined that compliance by providing an internal ramp would significantly reduce available retail space (23 square metres at the time of application) by approximately 50 per cent. The Panel felt compliance would render the space unsuitable for retail purposes and therefore would result in unjustifiable hardship. An external ramp was unreasonable as the shop was built up to the street boundary. The building was also covered by a Heritage Planning Overlay and the Panel felt that the façade features were integral to the heritage significance of the building. The conditions of the determination were that a portable ramp be permanently stored inside the entrance and that a doorbell be also installed so that assistance with placement of the ramp could be requested of staff.