The Premises Standards have recognised that there may be exceptional circumstances where there are practical constraints to complying with the access provisions. The DDA provides limited concessions and exception where avoiding discrimination would impose unjustifiable hardship.

The following is an example only of a likely scenario to be faced by the Access Panel;-

The increase in trade that flowed from upgrading pedestrian access to the Mall prompted O&M to strata the tenancies and the Optometrist purchased his own tenancy and an office above for a combined total of 450 sqm. The Optometrist plan is to install connecting stairs to create a Mega-Optometry store including retail downstairs and examinations and admin upstairs.

To do this the local building authority requested an upgrade to fire safety features including new sprinklers and the existing lath and plaster walls and ceilings to be lined with new Fire-Check-Gyprock.  The new works triggered the building application process which in turn triggered the APS. On the Architects advice; providing access to the affected parts means he may need to install a lift.

The budget for the new works came in at $30,000 for the new stairs, fire rating a further $15,000 and a lift a further $160,000. The Optometrist believes ‘the lift imposition is unfair and unreasonable’ and submits a claim for an exemption to the PCA who then forwards the application to the Access Panel for review.

The High Court provide that: “In determining what constitutes unjustifiable hardship, all relevant circumstances are to be taken into account. They include, relevantly, the nature of the benefit or detriment likely to accrue to, or be suffered by, the persons concerned, the effect of the disability, and “the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship”. [1]

The newly established process in NSW for determining UH follows that the Building Certify Authority (PCA) lodges an application, include financial statements, cost estimates and Access Consultants reports to an appointed State Access Panel for review and comment. The Access Panel hands a recommendation to the local or private PCA who is charged with making a final determination, presumably based on the Access panel’s recommendations, however not necessarily so.

We can only speculate on the possible outcomes of the UH process and at this stage its raising more queries than answers:

• • Will the Access Panel agree with the optometrist that the cost escalation for access will be 3 times the initial cost and therefore unjustifiable?
  • Will AP find the additional access works fair and ‘reasonable’ or ‘unreasonable’ and an unjust imposition?
  • Will they figure a % difference between the costs of the initial works and providing access is unjustifiable?
  • What if the PCA rejects the Access Panel’s recommendation and approves works which on completion is subject to a claim from a man with a walking frame backed by the legal wait of a leading Retinitis action group?

At this stage there hasn’t been a successful claim of unjustifiable hardship, yet the provision is now in place at the state level in NSW to receive applications.