1. Section 160B(1) of the Act, provides that an application may be made to the Board, in relation to land or a building, for a determination that an access provision of the building regulations:

(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 F2 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 performance requirement in DP1, which is entitled 'DP1 Access for people with a disability':

Access must be provided to the degree necessary to enable -

(a) people to -

(i) approach the building from the road boundary and from any accessible carparking spaces associated with the building; and

(ii) approach the building from any accessible associated building; and

(iii) access work and public spaces, accommodation and facilities for personal hygiene; and

(b) identification of accessways at appropriate locations which are easy to find.

1. Clause D3.1 of the BCA sets out the deemed to satisfy provisions which will satisfy the performance requirements in relation to access. Clause D3.1 provides that access for people with disabilities must be provided in a class 5 and 7b building to and within all areas used by the occupants.
2. Clauses DP1(D3.1) is a provision that fall within the meaning of a performance requirement under s 160B(8)(a)(i), (ii) and (iii) of the Act. Accordingly, cls DP1(D3.1) of the BCA is therefore an access provision for the purposes of s 160B(3) of the Act.
3. 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.

1. The Applicant provided the following submissions:

(a) The warehouse currently has a ground level footprint of approximately 350m2 and an upper floor of approximately 130m2. The ground level consists of the reception, sanitary facilities and product viewing areas. The existing upper level is currently being used as a private/personal area (office, exercise area and resting area).

(b) Since the Applicant's main employee suffered a stroke 4 years ago, he has required a daily work routine which includes regular exercise and short rests during the day as recommended by his neurosurgeon. Due to the personal usage of the upper level, he requires additional floor area to reallocate spaces for business operations (files, brochures, and excess product storage etc). The business is a single man operation, public and employee access apart from his wife to and within the building is not warranted.

(c) It is understood that in order to provide the required access, a passenger lift is required to be installed. As the building is only used by the Applicant's main employee and or 1 other staff (receptionist), the cost of a new lift will significantly increase the cost of construction.

(d) The business has been impacted by the main employee's stroke together with COVID-19's impact on the building industry. Several members cancelled membership which had an impact on the business. The Applicant notes that annual business growth has declined to 12% from 20-35% annual growth in the preceding 5 years prior to COVID-19. The building leased by the Applicant was then sold and due to concerns about being able to continue as a tenant, the Applicant purchased the warehouse which meant he spent all its funds on the building purchase.

(e) As the cost of the lift is approximately $58,000 - $65,000 not including cutting of the slab and constructing required footings. It is of significant cost to the business to install a lift that is unlikely to be used. The costs may take up to $70,000 total.

(f) The bulk of the business is conducted on the ground level where sales products are stored, and customers enter to order/ purchase the products (building materials). Furthermore, the products are not open to the retail public. The products are only available to members and entry is via appointments only. As members/customers may only enter the business only by appointment, the usual flow is 1 or 2 customers per day. This business arrangement has always been adopted from the beginning and shall be the ongoing practice.

(g) The public areas are all accessible and are provided with compliant ramps where required.

(h) The business receives no government funding, and the building is not heritage listed.

1. The Applicant provided some documentation in support of the original application including land title and a Trust Deed relevant to the Applicant.

1. An application under section 160B of the Act must prove that compliance with the access provisions of the Building Regulations 2018 (Regulations) would impose unjustifiable hardship on the Applicant. An Applicant may be, amongst others, the owner or a lessee of the building who proposes to have or is having building work carried out with respect to the building.
2. In terms of what the Building Act 1993 (Act) means by unjustifiable hardship on the Applicant, section 160B(4) (outlined above in Relevant Law) states what might constitute unjustifiable hardship on an Applicant. It includes financial costs to the Applicant in complying with the BCA access provisions.
3. To make a successful application to the Board, the Applicant has to:

(a) be either the owner or lessee of the building and

(b) prove there is unjustifiable hardship under section 160B(4) of the Act.

1. We held concerns that the Applicant may not be the correct entity to make the application for the following reasons:

(a) Based on the submissions provided, the Applicant stated that it ran a business at the building. However, when we reviewed a satellite map to better understand the application and building structure, we observed that a business named 'Australian Builder's Network' was operating at the building. A search of the Australian Builder's Network's and 'ABN search' websites revealed no direct link to the Applicant and a further search appeared to depict showroom and products being displayed on the first floor of the warehouse.[2] The Board asked for information on this issue in the Directions but received no response for reasons stated above.

(b) We were not provided with documentary evidence of the business conducted by the Applicant at the building. Accordingly, it is unclear whether the Applicant is the owner of the building which leases the building and land to another business or not.

(c) There was no explanation of how the Applicant owns and operates any business being conducted at the building.

(d) There was no evidence about what commercial relationship existed between the Applicant and the business operator at the building.

(e) There was no evidence to allow us to determine which entity would be responsible for the proposed building work at the building and/or evidence in support of this position.

1. Given the above, the Board was unable to confirm if the business run from the building was connected to the Applicant.
2. Under section 160B(2) of the Act, unjustifiable hardship can be experienced by either an owner of the building or the lessee of the building who proposes to have the building work carried out. In the current proceedings it is not clear whether the Applicant or the lessee is proposing to carry out the building work and what financial or other unjustifiable hardship it may impose on that entity.
3. Section 160B(7) of the Act requires us to have regard to the rights and interests of all relevant parties for the purposes of unjustifiable hardship. However, without knowing the true position of the relevant parties in relation to the proposed building work, their rights and interests cannot be assessed for unjustifiable hardship.
4. As we did not have evidence that the Applicant, rather than the business, would suffer any unjustifiable hardship, the Applicant has not established a ground to modify Clause 3.1 of the BCA.
5. In addition to the above, we did not receive relevant information such as:

(a) financial statements for the Applicant or the business operator demonstrating the financial losses stated to be experienced pre-COVID, during COVID and post COVID.

(b) current financial statements regarding current income, expenditure and overall profit margins.

(c) evidence such as a quotation for the cost of complying with the requirement to install an elevator.

(d) what elevator options have been considered and quoted for such as an internal floor elevator or external elevators?

(e) whether there were structural issues at the building which would prevent the installation of an elevator.

(f) medical statement from the treating medical practitioner confirming the treatment of the health condition which supports the basis for the extension of the building.

(g) whether any products are displayed on the first floor and the extent as well as type of product on this first floor.

1. There was no evidence before us to find that the application under section 160B of the Act could succeed. This is because there is no evidence that the Applicant which made the application would experience unjustifiable hardship.
2. Accordingly, we consider it appropriate to refuse the modification application.

[1] Corporations Act 2001 (Cth), s 124.

[2] Pursuant to cl 15(3)(b) of Sch 3 to the Act the Board may inform itself in any manner it thinks fit.