Unjustifiable hardship and disability access in NSW: what it means, who decides, and what to document
Unjustifiable hardship is a defence under the Disability (Access to Premises — Buildings) Standards 2010. It is not an approval or an exemption. It means it is not unlawful to fail to comply only to the extent that compliance would cause unjustifiable hardship, and you must still comply as far as you can. In NSW no authority grants it in advance. Sydney Access Consultants prepares the audit, Performance Solution and evidence that support a decision.
This is general information, not legal advice. Current NSW work is assessed against NCC 2022 Amendment 2 until NSW adopts NCC 2025 on 1 May 2027. The Premises Standards reference AS 1428.1:2021 from 29 July 2025.
What "unjustifiable hardship" means under the Premises Standards
Section 4.1 of the Disability (Access to Premises — Buildings) Standards 2010 (Compilation No. 3, 23 November 2024) sets out the defence. In plain words, a person does not contravene the Standards by failing to comply with a provision if, and to the extent that, compliance would impose unjustifiable hardship on the person. The duty still requires compliance to the maximum extent that would not impose unjustifiable hardship.
The Standards give an example: enlarging a lift may amount to unjustifiable hardship, but providing braille and tactile lift buttons may not. Partial compliance is the expected outcome. Factors in subsection (3) are read in light of the objects of the Disability Discrimination Act 1992.
Is unjustifiable hardship an exemption?
No. It is a defence that is tested after the fact, element by element and to an extent. It is not a blanket stamp that a building is exempt.
| What it is | Who decides | |
|---|---|---|
| Performance Solution | compliance by another route | Principal Certifier (PCA) |
| D4D5 area exemption | NCC area not required to be accessible | PCA accepts the justification |
| Unjustifiable hardship | DDA/Premises Standards defence for non-compliance | court, if a complaint proceeds |
A Performance Solution is compliance under the NCC. Hardship is a defence for residual non-compliance under the Premises Standards. D4D5 is an NCC area exemption the PCA can accept. Hardship is not decided by the PCA.
Who decides unjustifiable hardship in NSW?
The Australian Human Rights Commission states that only the Federal Court or the Federal Circuit and Family Court of Australia can determine unjustifiable hardship. NSW has no state access panel or appeals body that grants it in advance. An applicant may ask the PCA to consider an alternative such as a Performance Solution.
The PCA certifies NCC compliance (Deemed-to-Satisfy or Performance Solution). The PCA does not rule on a DDA defence. NSW heritage access guidance confirms there is no NSW process apart from a court decision after a complaint.
Where hardship arguments really arise: existing buildings and the affected part
The affected part
New work in an existing building brings the principal pedestrian entrance and the path of travel to the new part into scope under section 2.1(5) of the Premises Standards. That upgrade is where cost and fabric arguments often start.
The lessee, existing-lift and existing-toilet concessions in Part 4 are separate from hardship. They are written into the Standards, so no claim is needed. The lessee, existing-lift and existing-toilet concessions are written into the Standards, so no hardship claim is needed for them.
The factors in section 4.1(3), grouped so owners can gather evidence
Section 4.1(3) lists the factors a court would consider. Grouped for evidence collection:
| Factor group | s4.1(3) items | Evidence to gather | Who provides |
|---|---|---|---|
| Cost and money | (a) costs, (b) savings, (c) government funding, (e) financial position, (f) viability, (h) grants/resources, (i) cost vs building value | QS estimates for each option, valuation, financial statements, funding enquiries | QS, valuer, accountant, owner |
| Technical / geographic | (g) load-bearing elements, gradient, topography | Structural advice, survey, measured drawings | Structural engineer, surveyor, access consultant |
| Heritage | (l) whether the features are essential or merely incidental to significance | CMP or heritage impact statement; significance grading | Heritage consultant |
| Benefit and detriment | (j) benefits of compliance, (k) detriment of non-compliance | Who is excluded, how often, what alternative exists | Access consultant, operator |
| Public role | (d) public purpose / community function | Use profile and service catchment | Owner / operator |
| Process and good faith | (m) good-faith efforts incl. consulting access consultants or certifiers, (n) AHRC-lodged DDA action plan (s64 DDA), (o) consultation with people with disability, (p) State/Territory access body decisions | Consultant reports, PCA correspondence, action plan, consultation record | Access consultant, owner |
Heritage (factor l)
"Heritage listed" is not the test. The test is whether the features that would be affected are essential or merely incidental to significance. See heritage access Performance Solutions.
Good faith and early advice (factor m)
Consulting access consultants and certifiers is itself a listed factor. Early advice builds the record.
Action plans (factor n)
A DDA action plan lodged with the Australian Human Rights Commission under section 64 of the Disability Discrimination Act 1992 is a relevant factor. See DDA action plans for building owners.
Consultation (factor o)
Record consultation with people with disability. Keep notes of who was consulted, when, and what feedback was considered.
"Substantially equal access by other means" (s4.1(4))
If a substantial hardship issue is raised, two things are considered: whether substantially equal access is provided by other means, and what measures have been taken. Illustrations only (not compliant answers): an alternative entrance with equal dignity, service delivered at an accessible point, or staged works with dates.
The NSW sequence that actually works
- Audit and map the affected part.
- Price DtS options honestly.
- Take DtS as far as it goes.
- Performance Solution with the PCA for departures. See Performance Solutions.
- Document any genuine residual shortfall against s4.1(3).
- Provide alternative access and an action plan with dates.
- Keep the file.
What a hardship evidence report contains (and what it isn't)
It contains: scope and documents; affected elements; options considered with costs sourced from the QS; factor-by-factor reasoning; alternative access provided; what still gets done; limitations.
It is not legal advice or a ruling. Solicitors seeking expert evidence can start at expert witness.
Common mistakes
- Cost alone, with no option comparison.
- "Heritage listed so exempt".
- Claiming the whole building rather than the element.
- Asking the certifier to "approve hardship".
- No record of consultation.
- No action plan.
How Sydney Access Consultants helps
Sydney Access Consultants prepares access audits and plan assessments, Performance Solutions, and hardship evidence reports for owners and their legal advisers. Where a matter is in dispute, expert evidence is available.
Work is based in Hurstville. On the Mid North Coast, Sandy Grey works from Black Beach. Call (02) 9586 3111.
Related: access audits, Performance Solutions, expert witness, NCC 2025 in NSW, DDA compliance vs NCC, DDA complaints prevention.
Frequently asked questions
Is unjustifiable hardship an exemption from disability access requirements?
No. Under the Disability (Access to Premises — Buildings) Standards 2010, unjustifiable hardship is a defence, not an exemption. It is not unlawful to fail to comply only to the extent that compliance would impose unjustifiable hardship. You must still comply to the maximum extent that would not. The Standards' own example is that enlarging a lift might be unjustifiable hardship, while braille and tactile lift buttons might not be.
Who decides unjustifiable hardship in NSW, and can my certifier approve it?
In NSW no authority grants unjustifiable hardship in advance. The Australian Human Rights Commission says only a federal court can determine it, which happens if a complaint proceeds. Your Principal Certifier assesses NCC compliance, including any Performance Solution. The certifier does not rule on a DDA defence. The practical path is to comply as far as possible, use a Performance Solution for departures, and document any remaining shortfall against the factors in section 4.1.
What evidence supports an unjustifiable hardship position?
Section 4.1(3) lists the factors, including costs and benefits, the cost relative to the building's value, the owner's financial position and any available funding, technical and topographic constraints, whether heritage features are essential or merely incidental to significance, good-faith efforts such as consulting access consultants and certifiers, any DDA action plan, and consultation with people with disability. Keep priced options, specialist reports and a record of the alternative access provided.