Roof garden storeys: MHCLG asks sector and regulators to disregard FTT ruling

On 18 October 2024, the Government published a joint statement on the issue of whether a roof garden is classified as a storey when determining whether a building is a Higher-Risk Building (“HRB”) following a decision in the First-Tier Tribunal (“FTT”) which appeared to contradict government guidance.

Legal background

The HRB regime introduced by the Building Safety Act 2022 (“BSA 2022”) for the occupation phase of a building’s life relies on an apparently straightforward definition of being “at least 18 metres in height or [having] at least 7 storeys” and containing at least 2 residential units. There are different definitions of HRB across the various regimes that apply to HRBs.

The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (“Descriptions Regs”) defines this further with two clarifications. These clarifications are based on changes to the Building Regulations 2010 made in 2018 which ban combustible insulation in the external walls of the same class of buildings.

• “the height of the building is to be measured from ground level to the top of the floor surface of the top storey of the building” (ignoring any story consisting entirely of plant or machinery); and
• when determining the number of storeys, you should ignore any storey below ground level, any storey consisting entirely of plant or machinery, and “any storey consisting of a gallery with an internal floor area that is less than 50% of the internal floor area of the largest storey vertically above or below it which is not below ground level.”

The legal definition therefore makes no mention of rooftop gardens. Rooftop gardens are not mentioned in Approved Document B (“ADB”), the significant statutory guidance for compliance with the requirements of Part B of the Building Regulations. The version of ADB applying to most current works contains two diagrams, one to assist with measuring storeys, and one to assist with measuring height. Neither refer to rooftop gardens. Appendix A of ADB also defines a ‘storey’ non-exhaustively as including ‘any gallery in any other type of building if its area is more than half that of the space into which it projects’, and ‘a roof, unless it is accessible only for maintenance and repair’, the last of which would suggest a roof for rooftop garden purposes is included in the definition of a ‘storey’. But ADB does not define an HRB for the purposes of the in-occupation and construction phase regimes, but simply provides the guidance which ADB does in relation to specific requirements for buildings above 11m and 18m in height.

Source: ‘Approved Document B (fire safety) volume 1: Dwellings, 2019 edition incorporation 2020 and 2022 amendments.’ Online version available here. Crown Copyright, licensed under the Open Government Licence v3.0.

The guidance further to the Descriptions Regs published by MHCLG here (for the occupation phase – the same wording is given regarding new HRBs and works to existing HRBs) states:

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 MHCLG’s guidance is therefore clear that they consider that an open rooftop such as a rooftop garden is not counted towards the number of storeys. Diagram 11 included in the guidance makes it unavoidably clear that the intention is that, where a building that is otherwise a six-storey building has a rooftop garden, it is not to be considered a HRB.

Source: ‘Guidance – Criteria for determining whether a building is a higher-risk building during the occupation phase of the new higher-risk regime.’ Published 21 June 2023, last updated 18 October 2023. Available here. Crown Copyright, licensed under the Open Government Licence v3.0. 

The guidance also states that it is a tool to help dutyholders and accountable persons; that diagrams are only illustrative; and that users of the guidance may wish to seek legal advice.

The FTT decision

In the First-Tier Tribunal decision in Smoke House & Curing House, 18 Remus Road, E3 2NF  LON/00BG/HYI/2023/0024, the Tribunal had to grapple with application of the law and guidance to a specific building in the context of an application for a remediation order. The decision was made on 3 July 2024 and published on 4 October 2024. The decision recorded that “part of the roof to the building contains a roof garden”. It is clear from the decision that, in this specific case, inclusion of the roof in the number of storeys meant the building would exceed 7 storeys and a height of 18m. So, applying the Government guidance quoted above, provided that roof storey comprised solely of rooftop machinery or plant and/or an open rooftop garden, that storey should not be counted.

However, the Tribunal held that this guidance “appears not only to add to the statutory provisions, but also to contradict them”, in providing other exceptions beyond those given in the BSA 2022 and the Descriptions Regs. The guidance was rejected as not constituting a “reliable method of interpretation of law.”

The Tribunal stated that it had no jurisdiction to make a declaration that the building concerned was an HRB under Part 4 of the BSA 2022, as sought by the applicant. But the Tribunal did make a factual ruling based on its view of the law that the building concerned – including a garden rooftop – had 7 storeys and was more than 18m in height, and was therefore an HRB under the BSA 2022. It went on to make decisions about the relief sought – as a Remediation Order was granted – based on their finding that 

In response, MHCLG and BSR published the following statement at the top of the above mentioned guidance – with original formatting:

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 (PDF, 328KB) 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.

Comment

FTT decisions are not binding on future cases, but this decision clearly has a significant impact, as reflected in the MHCLG’s response. The MHCLG’s position above – that the FTT acknowledged it was not within its jurisdiction to make a declaration about whether the building was an HRB – is strictly true, but beside the point. That is because the FTT was required to make a decision about an application for a Remediation Order, the FTT did so, and the FTT would be required to do so upon any future application concerning a building with rooftop garden. The applicable legal and regulatory standards differ depending on whether the building is an HRB (or rather, depending on the same criteria that determine whether a building is an HRB), and these impact the scope of any remediation ordered to be carried out.

The MHCLG’s statement is understandable but currently appears to require the BSR to apply the law other than in accordance with the FTT’s interpretation. Clarity is essential, particularly for Principal Accountable Persons and Accountable Persons with obligations regarding HRBs which are in-occupation, as well as for the development of HRBs now and in the future.

Building owners and other interested parties should take legal advice and watch this space. Despite the importance of the BSA 2022 and regulations made under it, drafting infelicities have become clearer with time, and may require clarification. In the meantime, courts and tribunals can be expected to apply the law.

The Phase 2 Grenfell Tower Inquiry Report has also recommended an urgent view of the definition of HRB under the BSA 2022, describing the classification of risk solely by reference to height as not satisfactory and arbitrary. If and when changes to the definition of HRB is made, it is likely that similar issues will arise on any additional factors that are considered to make a building higher-risk, as currently do on building height.

For further information, please contact William O'Brien.