In the recent case of Blomfield and others -v- Monier Road Limited The First Tier Tribunal (FTT) considered whether a roof garden constituted a “storey” thereby turning the building into a ‘Higher-Risk Building’ (HRB) for the purposes of the BSA 2022. Here, Solicitor in Beyond Corporate’s Construction Team, Ruth Hassard looks at the FTT’s clarification of what may be classed as a “storey” under the Building Safety Act 2022 (BSA 2022).
The Case
The building in question comprised of six floors (five residential and one commercial) and a roof terrace and gardens.
The matter was brought to the FTT as the Claimant, Nicholas Bloomfield, sought a remediation order to force its Landlord, Monier Road Limited, to remove cladding and combustible material from the roof terrace, internal courtyards and balconies.
The crux of the dispute rested on whether the building should be classed as a HRB for the purposes of the BSA 2022.
The Parties
The Claimant Leaseholder argued that the building should be classed as an HRB, with the roof terrace counting as a “storey” for the purposes of BSA 2022. Under the BSA 2022, much more stringent safety standards are required for the building and management of HRBs.
The Defendant Landlord argued that a roof garden fell outside of the definition of a storey for the purposes of the BSA and therefore that the building should not be classed as a HRB as it fell outside the definition for HRBs under the BSA 2022.
What is a Higher-Risk Building?
A HRB is a building that:
- is at least 18 metres in height or has at least 7 storeys; and
- contains at least 2 residential units.
In terms of the measurement of buildings, it is worth noting Regulation 5 of the secondary legislation which came into force in 2023[1], which provides that “any storey which is a roof-top machinery or roof-top plant area or consists exclusively of roof-top machinery or roof-top plant rooms” shall be ignored.
FTT Decision
The FTT decided that a usable roof terrace was to be classed as a “storey”, even if such space was also utilised to store machinery and plant, with the FTT noting that “one of the concerns behind the definition of ‘storey’ for fire safety considerations must be where people might be located within flats or enclosed storeys, but where there is a roof garden, persons may well be located there.”
Accordingly, the FTT deemed the building to have seven storeys (thereby making it a HRB under the BSA 2022) and granted a remediation order. Following the FTT’s reasoning, the building should therefore be registered with the Building Safety Regulator and be subject to the stricter regime for HRBs.
This ruling is contrary to Government guidance on the matter of roof gardens which provided the following clarification of Regulation 5:
“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 FTT noted that the Government guidance contradicts the legislation and that such guidance is not a reliable interpretation of the wording of Regulation 5, with the intention of the legislation being to exclude roof top gardens comprising of roof-top machinery or plant only when measuring a building.
The decision made by the FTT is currently under review by the Ministry of Housing, Communities and Local Government (“MHCLG”) and it may be that changes are made to the Government guidance following MHCLG’s review.
Notwithstanding this, the MHCLG have advised that until stated otherwise, Government guidance relating to Regulation 5 should be followed.
Takeaways
With inconsistencies in the interpretation of Regulation 5 already arising, it may be prudent for parties to err on the side of caution and remember the purpose of the legislation, namely the “safety of people in or about buildings”, when considering whether the inclusion of a usable roof garden could lead to their building being deemed as a HRB for the purposes of the BSA 2022.
If you have any questions or require any further advice on this topic, get in touch with our specialist teams today at [email protected]
[1] The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023
