Roof garden storeys: new MHCLG guidance reiterates that FTT is wrong

Back in October 2024, a ruling of the First-Tier Tribunal cast doubt over the accuracy and legality of Government guidance as to determining whether a building is a higher-risk building. In particular, the FTT decided to make a Remediation Order in respect of a building, where that building only met the height criterion if a storey comprising a roof garden was included. That was contrary to Government guidance excluding such storeys from the 7-storey count threshold.

On 28 May 2025, MHCLG published new guidance on the criteria for being a higher-risk building. This guidance maintains the Government’s previous position that open storeys such as roof gardens, and contains the following notice:

Following the initial statement dated 18 October 2024, the Ministry of Housing, Communities and Local Government has carefully considered the views expressed by the Tribunal in the First-tier Tribunal decision dated 3 July 2024.

The department recognises the need to provide clarity within the legislation. We are consulting the Building Safety Regulator and other relevant stakeholders on a proposal to amend the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 to make it clear that roof gardens should not be considered a storey when determining whether a building is a higher-risk building under section 120D of the Building Act 1984 and section 65 of the Building Safety Act 2022.

In the meantime, the department’s view remains that roof gardens are not storeys for these purposes. This is the basis for current government guidance, which the sector and regulatory bodies should continue to refer to.

This issue therefore remains unresolved, with the Government proposing further legislative change; the law continues to develop to respond to the complex issues presented by the reality of managing building safety risks. The Government’s significant interventions in this area pose a challenge to those subject to these laws, where the law and Government guidance conflict.

For further information, please contact William O'Brien.