160BApplication for modification of building regulations relating to access for persons with disabilities

160B Application for modification of building regulations relating to access for persons with disabilities (1) An application may be made to the Building Appeals Board 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— to a building, or land on which a building is to be constructed, specified in the application. (2) The application may be made by— (a) the owner of the building or land; or (b) the purchaser under a contract of sale of a lot of a kind referred to in section 9AA(1) of the **Sale of Land Act 1962**; or (c) a lessee of the building, who proposes to have, or is having, building work carried out in respect of the building; or (d) any person acting on behalf of a person referred to in paragraph (a), (b) or (c), other than the relevant building surveyor. (3) An application must be made on the ground that compliance with the access provision of the building regulations would impose unjustifiable hardship on the applicant. (4) 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, operating or other 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 increases in revenue, that would be directly 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, 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 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; S. 160B(4)(n) amended by No. 34/2013 s. 34(Sch. 1 item 19). (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. (5) 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, on behalf of, or in association with, a person or organisation in order to ensure substantially equal access. (6) A determination under this section must provide for compliance with an access provision of the building regulations to the maximum extent not involving unjustifiable hardship. S. 160B(6A) inserted by No. 11/2023 s. 10. (6A) A determination of the Building Appeals Board made under subsection (1)(b) in relation to an access provision of the building regulations must not be inconsistent with any binding determination that applies to that provision. (7) For the purposes of this section, ***unjustifiable hardship*** is to be interpreted and applied having due regard to the rights and interests of all relevant parties. (8) In this section— S. 160B(8) def. of *access provision of the building regulations* amended by No. 43/2024 s. 28(1). ***access provision of the building regulations*** means— (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 The Disability (Access to Premises - Buildings) Standards 2010 of the Commonwealth are available from the Australian Government Attorney-General's Department website at www.ag.gov.au. (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 (b) a provision of a document applied, adopted or incorporated by reference in a performance requirement referred to in paragraph (a); ***applicant*** means a person referred to in subsection (2)(a), (b) or (c) who has applied under this section or on whose behalf another person has applied under this section; S. 160B(8) def. of *Building Code of Australia Volume One* substituted by No. 43/2024 s. 28(2). ***Building Code of Australia Volume One*** means Volume One of the National Construction Code including any Victorian variations or additions set out in that Volume; ***building developer*** means a person with responsibility for, or control over, the design or construction of the building and includes any of the following— (a) a building practitioner of a category referred to in paragraph (e), (f) or (h) of the definition of ***building practitioner***; (b) an architect within the meaning of section 3(1) of the **Architects Act 1991**; ***building manager*** means a person with responsibility for, or control over, the management of the building. (9) Division 5 (other than section 161) does not apply to an application under this section. Division 5—Powers concerning disputes and other proceedings S. 161 amended by No. 109/1997 s. 533(Sch. 2 item 1.1).