The government is asking construction and regulatory bodies to continue using its official advice to determine whether a building is higher-risk following a recent judgement flagging that the guidance “appears to contradict” statutory provisions.
A first-trier tribunal ruled in July that the roof terrace at Smoke House and Curing House in Hackney Wick, East London, qualified as a seventh storey, making it a higher-risk building under the Building Safety Act.
The case refers to a group of leaseholders who successfully sought remediation works from their landlord, Monier Road Ltd, after fire safety issues hindered the sale and mortgage of their flats.
The first-tier tribunal, led by Judge Martyński, said it was necessary to establish if the building fell under the higher-risk category, an issue which “is not a straightforward question even after a consideration of the relevant law and guidance”.
Contradictions
A previous hearing had shown “misgivings” regarding the fire safety reports produced by Monier, which assumed the building was not higher risk.
The first-tier tribunal’s decision said: “The [government guidance published on 21 June 2023] appears to do what the [Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023] do not, that is to define ‘storey’ where it provides; ‘A storey must be fully enclosed to be considered a storey. The roof of a building should not be counted as a storey. Open rooftops such as rooftop gardens are not considered storeys and should not be counted as such when determining the number of storeys or measuring the height’.”
The judgement added that the government guidance “appears to not only add to the statutory provisions, but also to contradict them”.
“The [Building Safety] Act provided that the regulations could define ‘storey’, the regulations do not contain that definition but the guidance purports to provide such a definition,” the decision continued. “The regulations appear to provide that a rooftop can be a storey save for the one exception where that storey has plant/machinery, however the guidance appears to say that there are other exceptions.”
Guidance update
On Friday (18 October), the government updated its guidance on the legal criteria for determining if a new building is considered higher-risk under the relevant legislation.
A note on the government website said: “The Ministry of Housing, Communities and Local Government and the Building Safety Regulator are currently considering the views expressed by the Tribunal in the recent First Tier Tribunal decision that roof gardens should be classified as a storey when determining whether a building meets the height and storey criteria under the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.
“It is important to note the Tribunal itself acknowledged it was not within its jurisdiction to formally determine whether the building being considered was a higher-risk building. Until stated otherwise, the sector and regulatory bodies should continue to refer to existing government guidance.”
The Ministry of Housing, Communities and Local Government did not respond to CM‘s request for comment by the time of publication.
