(a) does not apply; or

(b) applies with the modifications or variations specified in the application.

1. Section 160B(3) of the Act provides that an application must be made on the grounds that compliance with the access provision of the building regulations would impose unjustifiable hardship on the Applicant.
2. An access provision of the building regulations is defined in s 160B(8) of the Act to mean:

(a) a performance requirement -

(i) that is contained in Section D, Part E3 or Part F4 of the Building Code of Australia Volume One as forming part of the building regulations; and

(ii) in respect of which there is an equivalent performance requirement contained in the Access Code within the meaning of the Disability (Access to Premises- Buildings) Standards 2010 of the Commonwealth; and

(iii) to the extent that the performance requirement relates to the provision of access to buildings and facilities and services within buildings for persons with disabilities; and

a provision of a document applied, adopted or incorporated by reference in a performance requirement referred to in paragraph (a).

1. The BCA provides the following requirement under D4D2, which is entitled 'D4D2 General building access requirements':

(1) Buildings and parts of buildings must be accessible as required by this clause, unless exempted by D4D5.

For a Class 9b building, access requirements are as follows:

(a) Schools and early childhood centres - to and within all areas normally used by the occupants.

(b) An assembly building, not being a school or early childhood centre - to and within -

(i) wheelchair seating spaces provided in accordance with D4D10; and

(ii) all other areas normally used by the occupants, except that access need not be provided to tiers or platforms of seating areas that do not contain wheelchair seating spaces.

1. The BCA provides the following requirement under F4D5, which is entitled 'F4D5 Accessible sanitary facilities':

(a) accessible unisex sanitary compartments must be provided in accessible parts of the building in accordance with F4D6; and

(b) accessible unisex showers must be provided in accordance with F4D7; and

(c) at each bank of toilets where there is one or more toilets in addition to an accessible unisex sanitary compartment at that bank of toilets, not less than one sanitary compartment suitable for a person with an ambulant disability for use by males and not less than one sanitary compartment suitable for a person with an ambulant disability for use by females, each in accordance with AS 1428.1, must be provided; and

(d) an accessible unisex sanitary compartment must contain a closet pan, washbasin, shelf or bench top and adequate means of disposal of sanitary products; and

(e) the circulation spaces, fixtures and fittings of all accessible sanitary facilities provided in accordance with F4D6 and F4D7 must comply with the requirements of AS 1428.1; and

(f) an accessible unisex sanitary facility must be located so that it can be entered without crossing an area reserved for one sex only; and

(g) where two or more of each type of accessible unisex sanitary facility are provided, the number of left and right handed mirror image facilities must be provided as evenly as possible; and

(h) where male sanitary facilities are provided at a separate location to female sanitary facilities, accessible unisex sanitary facilities are only required at one of those locations; and

(i) an accessible unisex sanitary compartment or an accessible unisex shower need not be provided on a storey or level that is not required by D4D4(f) to be provided with a passenger lift or ramp complying with AS 1428.1.

1. Clauses D4D2 and F4D5 are provisions that falls within the meaning of a performance requirement under s 160B(8)(a)(i), (ii) and (iii) of the Act. Accordingly, cls D4D2 and F4D5 of the BCA are therefore access provisions for the purposes of s 160B(3) of the Act.
2. In determining whether compliance with an access provision would impose unjustifiable hardship, we are required to take into account all relevant factors including the factors contained in s 160B(4) of the Act, which provides:

In determining whether compliance with an access provision of the building regulations would impose unjustifiable hardship on the applicant, the Building Appeals Board must take into account all relevant circumstances of the particular case including the following -

(a) any additional capital or other operating costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the provision;

(b) any reductions in capital, operating or other costs, or increase in revenue, that would be achieved by, or reasonably likely to result from compliance with the provision;

(c) the extent to which the construction of the building has or will be financed by government funding;

(d) the extent to which the building -

(i) is used for public purposes; and

(ii) has a community function;

(e) the financial position of the applicant;

(f) any effect that compliance with the provision is reasonably likely to have on the financial viability of the applicant;

(g) 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 or topography), affecting a person's ability to comply with the provision;

(h) financial, staffing, technical, information and other resources reasonably available to the applicant, including any grants, concessions, subsidies or other external assistance provided or available;

(i) whether the cost of alterations to make any premises accessible is disproportionate to the value of the building, taking into consideration the improved value that would result from the alterations;

(j) benefits reasonably likely to accrue from compliance with the provision, including benefits to persons with disabilities, to building users or to other affected persons, or detriment likely to result from non-compliance;

(k) detriment reasonably likely to be suffered by the applicant, building developer, or building manager, or by persons with disabilities or other building users, including in relation to means of access, comfort and convenience, if compliance with the provision is required;

(l) if detriment under paragraph (k) involves loss of heritage significance, the extent to which the heritage features of the building are essential, or merely incidental, to the heritage significance of the building;

(m) any evidence regarding efforts made in good faith by the applicant or a person required to comply with the provision, including consulting access consultants or the relevant building surveyor;

(n) if the applicant has given an action plan (within the meaning of Part 3 of the Disability Discrimination Act 1992 of the Commonwealth) to the Authority under section 64 of that Act, the terms of the action plan and any evidence of 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 the applicant, a building developer, building manager or the relevant building surveyor and persons with disabilities, about means of achieving compliance with the provision, including in relation to the factors listed in this subsection.

If a substantial issue of unjustifiable hardship is raised having regard to the factors mentioned in subsection (4), the Building Appeals Board must consider the following additional factors-

(a) the extent to which substantially equal access to public premises is or may be provided otherwise than by compliance with the access provision of the building regulations:

(b) any measures undertaken, or to be undertaken, by, or on behalf of, or in association with, a person or organisation to ensure substantially equal access.

1. We must, under s 160B(6) of the Act, ensure that a determination under s 160B requires compliance with the access provisions to the maximum extent not involving unjustifiable hardship.
2. The BAB further notes the following provisions from the BCA are relevant to a consideration of this matter:

D4D2 General building access requirements [2019: D3.1, Table D3.1]

(1) Buildings and parts of buildings must be accessible as required by this clause, unless exempted by D4D5.

(8) For a Class 9b building, access requirements are as follows:

(a) Schools and early childhood centres - to and within all areas normally used by the occupants.

(b) An assembly building, not being a school or early childhood centre - to and within -

(i) wheelchair seating spaces provided in accordance with D4D10; and

(ii) all other areas normally used by the occupants, except that access need not be provided to tiers or platforms of seating areas that do not contain wheelchair seating spaces

1. The Applicant provided the following submissions:

(a) There are two applications for modifications, the first relates to the requirements to install accessible sanitary facilities and the second is to install a passenger lift.

(b) The first floor of the building has undergone a change in use from a Class 6 (café) to a Class 9b (pool hall) and is subject to a Building Notice. The alteration of the class has not impacted the functionality of the space or usable floor size. The total first floor area is 134.55m2 and no work has been undertaken to increase the first-floor area. Therefore, a passenger lift need not be provided (Part D4D4 Volume 1 2022) to provide access to the first floor. As a result, the structure did not have an existing accessible facility in accordance with Part F4D5 on the first floor.

(c) If the building remained as a Class 6 it would be subject to exemptions for passenger lifts or ramps, however the Class 9b change of use is not subject to such exemptions. There is currently no passenger lifts/ramps.

(d) The first floor area contains 6 billiard tables with non-fixed tables and chairs. The useable floor area for patrons is approximately 84.7m2

(e) NCC Volume 1 D4D4(f) suggests a passenger lift need not be provided to serve a storey or level other than the entrance storey in a Class 5, 6, 7b or 8 building which contains not more than 3 storeys and a floor area for each story, excluding the entrance storey, of not more than 200m2. This exemption does not apply to a Class 9.

(f) Given that Part D4D4(f) exemption is not afforded to the Class 9b use, the owner would be forced to provide both a passenger lift and an accessible sanitary facility despite servicing fewer patrons, which would result in unjustifiable hardship and significant costs.

(g) The owner would also have to install a passenger lift to access the first floor. Given the cost of a passenger lift and the lack of space on both the ground floor and first floor, major structural works would be required to install a lift shaft. This would result in significant costs to the tenant with little to no financial benefit. It would also likely require the business to close for an extended time, resulting in a loss of potential profits.

(h) In relation to 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 provision, the Applicant states:

(i) The cost to build a compliant unisex accessible sanitary facility on the first floor is $21,560 incl GST. A quotation dated 20 May 2024 has been provided in support of this cost.

(ii) The first-floor level is less than 134m2 with 3 existing sanitary facilities to service on-site patrons only

(iii) The cost to provide a passenger lift would be significant and would also result in the closure of the business and financial loss to the tenant.

(iv) The building is quite old.

(v) The compliance costs are significant, and the business would need to be closed down whilst undertaking remedial works.

(vi) The costs to fully comply outweighs the benefit of bringing the first-floor into compliance. The owner will have to outlay significant amount of money, and it will result in the loss of income whilst remedial works are undertaken.

(vii) Given the layout of the building and the limited space available, the installation of both a passenger lift and compliant accessible sanitary facilities would reduce the usable floor area of the building.

(viii) The installation of a lift would further decrease the usable floor area and would likely not be feasible to install given the small space on the ground floor. Effectively meaning the owner would not be able to operate their business at all resulting in a loss of income

(i) The cost of compliance will be a significant cost which will result in reduction in revenue for both the sanitary facilities and passenger lift. It will not create a significant benefit to the owner or passenger. Further the building is relatively old and major structural works could lead to further hidden costs if the existing structure is required to be reinforced or strengthened.

(j) The construction will not be financed by government funding.

(k) The proposed first-floor billiard parlour is modest and already has established sanitary facilities with service to on-site patrons only.

(l) The financial position of the Applicant is sound however the loss of revenue or income if the owner or tenant was forced to cease operations, outlay a significant amount of money for compliance and would have a significant impact on their financial position.

(m) The rates for the commercial retail area are $8,000/m² in the City of Melbourne. The 3.67 m² of usable floor area lost to accommodate a unisex accessible sanitary facility translates to an additional cost of $29,360.00.

(n) The substantial cost to install a passenger lift and accessible sanitary facilities on the first floor, to service on-site patrons, does not translate to an improved value of the existing 2-storey commercial retail building. The increased cost to the owner and tenant will be disproportionate to the value of the building and the benefit of providing full compliance, given existing access restrictions to the existing building with no accessible car parking.

(o) There would be no additional benefit to provide a passenger lift to the first floor or sanitary facilities and a reduction in the functionality of the space.

(p) There would be little change to the nature of the patrons using the Class 9b in comparison to the Class 6 (café). A high degree of mobility is required by patrons to travel to the existing building as there is no parking on site and no existing passenger lift to get to the first-floor area. There are already existing sanitary facilities on the ground floor supermarket.

(q) The relevant building surveyor has provided supportive comments in relation to the proposed development and application for modification.

1. The Interested Party provided the following information:

(a) The RBS does not have authority to approve works which do not comply with the requirements of the Act, Building Regulations 2018 (Regulations) or the National Construction Code.

(b) Based on the reasons given in the application, the RBS is satisfied that it would be unreasonable and unjustified for the owner and tenant to have to upgrade an existing building to install a passenger lift.

(c) The RBS has no objection to the modification application.

1. The BAB considers it useful to address the change of class in the context of the building/business characteristic (Building Characteristics) and application of the relevant law to assess whether a claim for unjustifiable hardship has been established under s 160B of the Act (the Applications).

Building Characteristics relevant to the Application

1. The building is a two storey structure with a heritage listing for the portion at the rear of the building.[1] The heritage overlay does not appear to apply to the portion of the building subject of these proceedings. However, generally it would appear to support the Applicant's submission that the building is old.
2. The building has two businesses operating on two floors of the building. The ground floor has a supermarket which already contains sanitary facilities which may meet the disability access provisions.
3. The first floor of the building is currently accessed by a staircase approximately 1.2-1.4m wide and leads to a total floor space of 134.55m2. The stairs are proposed to comply with AS1428.1-2009.
4. The first floor of the building used to contain a Class 6 café but a change of use occurred when the new business operating out of the first floor of the building became a pool hall.
5. Under cl D4D4(f) of the BCA, there are exemptions to the disability access provisions where the floorspace is under 200 square metres. This exemption applies to a Class 6 building but does not apply to a Class 9b building.
6. The applicable building classifications for 9b buildings further lists an example as a 'snooker hall'. Given this, we understand why the change of use has occurred.
7. We note however that due to the placement of six billiard tables in the small floor space, the useable floor space for members of the public on the first floor of the building is limited. It would be reasonable to consider that the business would be able to accommodate fewer members of the public as a result.
8. In many respects the use of the first-floor space for the current business would still compare favourably in terms of the number of people accommodated to that of the Class 6 classification when the space was still used as a café.

1. We note that each of the criterion outlined under s 160B(4) of the Act are the same for the lift and sanitary facilities which provide disability access.
2. If we determine that the requirement to have a lift does not apply, then the requirement to provide accessible sanitary facilities would also not apply as the first floor would not be accessible. This is because under cl F4D5 of the BCA, accessible sanitary facilities must be provided in accessible parts of the building. If the first floor is not required to be accessible, then it follows that cl F4D5 is not applicable.
3. For these reasons we consider it is appropriate to have regard to each criterion for both applications together. We will deal with each criterion under s 160B(4)(a)-(o) before giving consideration to s 160B(5) and (6).

(a) any additional capital or other operating costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the provision;[2]

1. There will be substantial capital outlay to comply with the provision in creating a lift well and functional lift. Further, as the building is older the construction costs may be higher than for a more modern building due to the need to make alterations to enable the building and its foundations to take the additional loads imposed from the weight of the lift. We believe that the lift and associated building work would normally be $80,000 -$100,000, however additional costs might be required to ensure the building can safely take the additional load from the weight of the lift.
2. We accept that the cost of providing an accessible sanitary facility is likely to be $21,560 incl GST as stated in the quotation supplied by the Applicant.
3. There is evidence that during works to install a lift or an accessible sanitary facility, there will be a loss of revenue as the small floor space means that the business will have difficulty operating around the building work to comply with the provisions.
4. We also accept that the useable floor space will be reduced and that this will have an impact on the number of members of the public who can safely enter the business.
5. The Panel notes there is also a loss of floor space for the lift of approximately 2-32sqm and each square meter of floor combined for 4-6sqm would equate to a financial loss of $32,000-48,000 in lost floor space.
6. Accordingly, compliance with the provision will create significant additional capital costs as well as an ongoing loss of revenue directly from compliance with the provision.

(b) any reductions in capital, operating or other costs, or increase in revenue, that would be achieved by, or reasonably likely to result from compliance with the provision;[3]

1. There is no evidence that there could be any reduction in capital, operating or other costs or an increase in revenue likely to be achieved from compliance.
2. We do not consider that this criterion applies in the circumstances of the Applicant's applications for modification of the requirements in relation to the installation of a lift or accessible sanitary facilities. It is clear that there is more likely to be a reduction in revenue from compliance with the provisions of the BCA.

(c) the extent to which the construction of the building has or will be financed by government funding;[4]

1. The Applicant will receive no government funding and accordingly this criterion does not apply.

(d) the extent to which the building -

(i) is used for public purposes; and

(ii) has a community function;[5]

1. The business at level 1 is open to members of the public but has a limited floor space for them to meet for social or recreational purposes.
2. There is no known community-based function evident in the material before the BAB.

(e) the financial position of the applicant;[6]

1. The Applicant has stated that its current financial position is 'sound' but notes the loss of revenue or income due to the cessation of operations and significant financial outlay for compliance would have a significant impact on its financial position.
2. We accept that the Applicant's financial position whilst currently 'sound' would be negatively impacted by both the capital outlay required for works to comply with the relevant accessibility provisions as well as ongoing reductions in income.

(f) any effect that compliance with the provision is reasonably likely to have on the financial viability of the applicant;[7]

1. We note our findings above for criterion (e) are relevant.
2. We accept that compliance with the provision is reasonably likely to have a negative impact on the Applicant's financial viability.

(g) 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 or topography), affecting a person's ability to comply with the provision;[8]

1. We note our comments above in relation to the age of the building and the potential issues and/or additional costs in placing the weight of the lift on the foundation's footings of an older building. These costs would be less likely to be incurred in a newer building. We also accept that there may be potential unknown structural integrity issues which could further increase the cost.
2. The outlay of costs may be unsustainable even before the additional cost of the lift and lift installation.

(h) financial, staffing, technical, information and other resources reasonably available to the applicant, including any grants, concessions, subsidies or other external assistance provided or available;[9]

1. The Applicant is not receiving any financial or other resources or assistance.

(i) whether the cost of alterations to make any premises accessible is disproportionate to the value of the building, taking into consideration the improved value that would result from the alterations;[10]

1. As noted, the cost of the sanitary facilities plus the lift addition would require capital outlays of at least $80,000 to $100,000. Given the limited floor space available on level 1 of the building, it appears unlikely that the rental yield or income yield of the business could easily cover these costs.
2. We further note that the only value in adding the accessibility features would be for uses set out under Class 9b as a Class 6 building is exempt from the requirements.
3. We can see no reasonable basis to find that the compliance with the provision would improve the value of the building. There is a likelihood that compliance will have the opposite effect due to the significant reduction in usable floor space for the business which will result from compliance.
4. We conclude that the loss of usable floor space will result in a loss of yield for business income - and rental income to the owner.

(j) benefits reasonably likely to accrue from compliance with the provision, including benefits to persons with disabilities, to building users or to other affected persons, or detriment likely to result from non-compliance;[11]

1. The benefits reasonably likely to accrue from compliance with the provision are minimal. The building is surrounded by narrow laneways, cobblestones and kerbs with steps rather than ramping. The locale is not disability friendly and may create challenges to wheelchair dependent individuals, as well as visually impaired individuals and even to individuals with disabilities who are more ambulant.
2. We further note the business itself contains multiple pool tables with limited floor space and, given this, challenges would arise for manoeuvring around the pool tables for those with physical and potentially visual impairments.
3. We do not consider there would be significant benefits to persons with disabilities or to building users likely to result from compliance.

(k) detriment reasonably likely to be suffered by the applicant, building developer, or building manager, or by persons with disabilities or other building users, including in relation to means of access, comfort and convenience, if compliance with the provision is required;[12]

1. The loss of floor space for the creation of the lift and accessible sanitary fixtures would result in the potential impacts to the other sanitary facilities on the first floor. It may also create a tighter space for customers to manoeuvre unless the recreational pool tables were removed. This may be categorised as a loss of comfort or convenience if compliance with the provision is required.
2. As there are accessible sanitary facilities nominated on the ground floor, it is doubtful that there would be a loss to general convenience or comfort to other areas of the building.

(l) if detriment under paragraph (k) involves loss of heritage significance, the extent to which the heritage features of the building are essential, or merely incidental, to the heritage significance of the building;[13]

1. There is a narrow portion of the building which is under heritage overlay. We do not think the heritage issue extends to the relevant portion of the building in which the compliance would be required under the BCA. However, we acknowledge that the building is older.

(m) any evidence regarding efforts made in good faith by the applicant or a person required to comply with the provision, including consulting access consultants or the relevant building surveyor;[14]

1. The Applicant has consulted with the relevant building surveyor and determined that it is appropriate to make applications as it relates to the lift and sanitary facilities.

(n) if the applicant has given an action plan (within the meaning of Part 3 of the Disability Discrimination Act 1992 of the Commonwealth) to the Authority under section 64 of that Act, the terms of the action plan and any evidence of its implementation;[15]

1. We do not consider that this criterion applies as there is no evidence of an action plan being given to the Authority.

(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 the applicant, a building developer, building manager or the relevant building surveyor and persons with disabilities, about means of achieving compliance with the provision, including in relation to the factors listed in this subsection.[16]

1. The building is not a significant building and nor is the business sufficiently large to warrant consultation as indicated in this criterion.
2. We have further considered s 160B(5) of the Act and potential options such as a stair climber. We do not consider these options would assist as the staircase is narrow and the stair climber, whilst potentially cheaper, would create other issues for functionality and compliance with other provisions of the BCA.
3. We note those with visual/hearing impairments as well as certain less severe ambulatory disabilities would likely still be able to access the business. Ensuring that the stairs are compliant would provide as much equal access as possible in the circumstances of this particular building. This result would meet the purpose of s 160B(6) of the Act.
4. We determine that the Applicant has established that compliance with the requirement to provide lift access and an accessible sanitary facility to the first floor of the building would impose unjustifiable hardship.
5. Accordingly, we will make the appropriate orders permitting the modifications.

[1] The BAB may inform itself as it sees fit. See clause 15(3)(b) of Schedule 3 of the Act. The Board accessed the Heritage Database Victoria due to comments made by the Applicant regarding the age of the building.

[2] Building Act 1993, s 160B(4)(a).

[3] Ibid, s 160B(4)(b).

[4] Ibid, s 160B(4)(c).

[5] Ibid, s 160B(4)(d).

[6] Ibid, s 160B(4)(e).

[7] Ibid, s 160B(4)(f).

[8] Ibid, s 160B(4)(g).

[9] Ibid, s 160B(4)(h).

[10] Ibid, s 160B(4)(i).

[11] Ibid, s 160B(4)(j).

[12] Ibid, s 160B(4)(k).

[13] Ibid, s 160B(4)(l).

[14] Ibid, s 160B(4)(m).

[15] Ibid, s 160B(4)(n).

[16] Ibid, s 160B(4)(o).