Case Studies on Unjustifiable Hardship and Disability Access in NSW: Key Insights for Inclusive Building Design

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Wednesday, 04 February 2026 20:49

Wednesday, 04 February 2026 20:48

Gary J Finn

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Case Studies on Unjustifiable Hardship and Disability Access in NSW: Key Insights for Inclusive Building Design

This article seeks to properly arm you with information to make sound commercial decisions.

In New South Wales (NSW), disability access obligations under the National Construction Code (NCC) 2022, the Disability Discrimination Act 1992 (DDA), and the Disability (Access to Premises – Buildings) Standards 2010 (Premises Standards) are critical for creating equitable spaces. However, the defense of "unjustifiable hardship" allows for exceptions in cases where full compliance would impose excessive burdens. Drawing from landmark NSW case studies, this guide examines real-world applications of these laws, highlighting lessons for architects, developers, and facility managers. These examples underscore the importance of proactive planning to avoid legal pitfalls while fostering inclusivity—essential for projects in Sydney's heritage-rich areas or Perth's community-driven developments.

At Sydney Access Consultants, we leverage our expertise in architectural services and disability access consulting to help you navigate these complexities. Whether ensuring NCC 2022 compliance in a Sydney retrofit or tailoring sensitive solutions for Western Australia's unique market preferences, we deliver designs that prioritize accessibility without compromising your vision, boosting organic traffic and client appeal.

The Role of Unjustifiable Hardship in NSW Disability Access Cases

In NSW, unjustifiable hardship under Premises Standards Clause 4.1 serves as a defense against DDA claims, evaluated on factors like financial costs, technical feasibility, and benefits to users with disabilities. Courts, including the Federal Court and Australian Human Rights Commission (AHRC), assess claims case-by-case, often favoring inclusivity unless hardship is clearly proven. NSW-specific enforcement through Anti-Discrimination NSW and federal bodies emphasizes reasonable adjustments, with non-compliance risking complaints, damages, and reputational harm.

These case studies from NSW illustrate how hardship claims succeed or fail, offering practical guidance for building projects under NCC 2022 Part D4.

Key Case Studies from NSW

1. Purvis v New South Wales (Department of Education and Training) (2003) – High Court of Australia

• Context: Daniel Hoggan (Purvis, on behalf of the child) challenged the suspension and expulsion of a student with intellectual disabilities and behavioral issues from a NSW public school. The school argued that accommodating the student's violent behavior would impose unjustifiable hardship on staff and students.
• Key Issues: The case centered on whether the student's behavior constituted part of their disability under the DDA, and if adjustments (e.g., additional support) were reasonable. The school claimed hardship due to safety risks and resource demands.
• Outcome: The High Court ruled 4-3 in favor of the school, finding no direct discrimination as the treatment was based on behavior, not disability per se. However, on indirect discrimination, the majority held that the school's policies were reasonable, implying hardship in full accommodation. No damages were awarded.
• Insights for Designers: This landmark case highlights that behavioral manifestations of disabilities must be considered in educational facilities under NCC 2022. For school designs in NSW, incorporate flexible spaces for support services to mitigate hardship claims, ensuring compliance with Premises Standards while enhancing safety.

2. Finney v The Hills Grammar School (1999) – Human Rights and Equal Opportunity Commission (HREOC)

• Context: Scarlett Finney, a child with spina bifida requiring a wheelchair and catheter assistance, was denied enrolment at a private Sydney school. The school cited unjustifiable hardship due to facility modifications needed for access.
• Key Issues: The school argued costs for ramps, widened doors, and staff training would impose excessive financial and operational burdens.
• Outcome: Commissioner Graeme Innes found the school unlawfully discriminated, rejecting the hardship claim as the adjustments were feasible and not unduly burdensome. The decision was upheld on appeal, emphasizing that schools must provide reasonable access.
• Insights for Designers: In NSW independent schools, early integration of accessible features (e.g., NCC 2022-compliant ramps and toilets) prevents hardship defenses. This case stresses documenting alternatives to strengthen compliance in heritage or constrained sites.

3. Huntley v State of New South Wales (Department of Police and Justice – Corrective Services NSW) (2015) – Federal Circuit Court

• Context: Ms. Huntley, a prison officer with Crohn's disease, alleged discrimination after CSNSW failed to provide reasonable adjustments like flexible hours and accessible facilities.
• Key Issues: CSNSW claimed adjustments would cause operational hardship in a secure environment.
• Outcome: The court found direct and indirect discrimination, awarding $170,000+ in damages (including $75,000 for pain and suffering). Hardship was not upheld, as adjustments were deemed reasonable without unjustifiable burden.
• Insights for Designers: For NSW public sector buildings like correctional facilities, incorporate universal design elements (e.g., adjustable workspaces per AS 1428.1:2021) to avoid similar claims. This reinforces NCC 2022's emphasis on equitable access in high-security contexts.

4. Recent NSW Case Studies from Anti-Discrimination NSW (2025 Examples)

• Not Enough Reasonable Adjustments at Work (June 2025): Sylvana, with Fibromyalgia and Hypermobility, complained of inadequate workplace supports. The employer settled by providing ergonomic adjustments, avoiding a hardship claim.
• School Had No-Crutches Policy (May 2025): Gerry, with mobility impairments, challenged a school's policy; resolved with policy changes, highlighting failures in educational access.
• Denied Access to Ground Floor Toilet (July 2025): Yù Míng, using a wheelchair due to cerebral palsy, was denied facility access; settled with improved signage and ramps.
• Insights for Designers: These conciliations show that small modifications often negate hardship defenses. In NSW commercial or educational builds, prioritize NCC 2022 features like tactile indicators and unisex accessible toilets to preempt complaints.

5. Druett and Cooper v New South Wales (1997) – HREOC

• Context: Two wheelchair users claimed discrimination due to inaccessible jury rooms in Sydney and Coffs Harbour courts.
• Key Issues: The state argued retrofitting older buildings would impose unjustifiable hardship given the DDA's recent enactment.
• Outcome: Commissioner Street awarded $5,000 to one complainant for service denial but accepted hardship for premises access, noting planned upgrades.
• Insights for Designers: For NSW public infrastructure, phased NCC 2022 compliance (e.g., under Clause A2G2) can support hardship claims during transitions.

Lessons from NSW Case Studies for NCC 2022 Compliance

These cases reveal that unjustifiable hardship succeeds when burdens are substantial and alternatives exhausted, but courts prioritize inclusivity. Common themes include:

• Financial vs. Equitable Balance: Costs must outweigh benefits significantly.
• Proactive Adjustments: Early audits reduce risks.
• Heritage Considerations: NSW's rich history demands balanced designs.

Implications for Building Projects in NSW and Beyond

In NSW, overlooking access can lead to DDA complaints via AHRC, with potential court escalations. For Sydney projects, integrate NCC 2022 from the outset; in Perth, adapt sensitively to local values.

Partner with Experts for Defensible Designs

Navigating unjustifiable hardship demands precision. At Sydney Access Consultants, our architectural and disability access services ensure your NSW projects exceed NCC 2022 standards, from hardship assessments to Performance Solutions. Extending to Western Australia, we craft community-aligned strategies that respect Perth's preferences, driving inclusive success.

Visit sydneyaccessconsultants.com.au for NCC 2022 resources or contact us—let's build resilient, accessible futures.