129HCircumstances to be taken into account for access

129H Circumstances to be taken into account for access modification decision (1) In considering an application for an access modification decision, and deciding whether compliance with a particular disability access provision would impose unjustifiable hardship on the applicant, the Appeals Board must take into account all circumstances relevant to the application. (2) Without limiting subsection (1), circumstances relevant to the application may include any of 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 disability access provision; (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 disability access provision; (c) the extent to which the construction of the building has been, or will be, financed by government funding;

Building Act 1993 109 (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 disability access 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 disability access provision; (h) financial, staffing, technical, information and other resources reasonably available to the applicant, including any grants, tax 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 disability access provision (including benefits to persons with disabilities, building users and other affected persons) or detriment likely to result from non-compliance; (k) if compliance with the provision is required – detriment reasonably likely to be suffered (including in relation to means of access, comfort and convenience) by any of the following: (i) the applicant or building developer; (ii) a building manager; (iii) persons with disabilities and other people using 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;

Building Act 1993 110 (m) any evidence about efforts made in good faith by the applicant or a person required to comply with the disability access provision (including the relevant building certifier and any consulting access consultants); (n) if the applicant has given an action plan to the Australian Human Right Commission under section 64 of the Disability Discrimination Act 1992 (Cth) – 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 and other levels, involving, or on behalf of, the applicant, a building developer, a building manager, the relevant building certifier or persons with disabilities, about means of achieving compliance with the disability access provision, including in relation to the factors listed in this subsection. (3) If a substantial issue of unjustifiable hardship is raised having regard to a factor mentioned in subsection (2), the 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 disability access provision; (b) any measures undertaken (or to be undertaken) by, on behalf of, or in association with, a person or organisation in order to ensure substantially equal access. building developer means a person with responsibility for, or control over, the design and construction of a building. building manager means a person with responsibility for, or control over, the management of a building.