EXECUTIVE SUMMARY

The First Tier Tribunal considered, in an application for a remediation order under the BSA, that a roof garden could constitute a 'storey' based on its interpretation of the legislation, notwithstanding that its interpretation contradicts widely used Government guidance on how to measure buildings to determine whether they are a HRB.

The Government and the Building Safety Regulator has already stated that it is considering the decision of the Tribunal, although we will have to wait for the outcome of that review.  

The case could have widespread significance in marginal cases, where owners or their advisors have followed Government guidance and disregarded roof areas when assessing whether a building is a HRB.  

The decision

The Tribunal addressed the question of whether the subject building was a HRB.  The building comprised ground-floor commercial space, five residential storeys and roof gardens.  

The Tribunal considered the relevant legislation and associated Government guidance as to whether the roof gardens constituted a 'storey' and found them to be contradictory.  The BSA allows the Secretary of State to make regulations to define what is meant by a 'storey'.  This has not been done.

What is a 'storey'?

Since the BSA came into force in 2022, there has been a raft of secondary legislation and guidance on the interpretation of the BSA, but there remains no clear definition of what constitutes a 'storey' for the purposes of classifying a building as a HRB.

Secondary legislation which came into force in 2023 (the Regulations [1]) does not define 'storey' but does provide that any storey containing exclusively machinery/plant is not to be counted as a 'storey' for the purposes of the legislation [2]. The Tribunal concluded that "This, by implication, would therefore mean that a useable roof top containing a roof garden together with plant/machinery would count as a storey".

The Government produced guidance on 21 June 2023 [3] which sought to define 'storey', stating expressly that a storey "must be fully enclosed" and that the roof of a building "should not be counted as a storey". It went further and said that "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 Tribunal was troubled by the apparent discrepancy between the Regulations and the guidance.  The Tribunal's own interpretation of the Regulations concluded that, by implication, a roof garden should be classed as a storey.  The Tribunal questioned the status of the web-page guidance notes, which contained caveats on its use and interpretation, before concluding that "These web-pages … do not constitute a reliable method of interpretation of the law".

The Tribunal also considered how a roof garden might be used. It observed 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. Therefore the level of the roof garden will be significant in determining height".

If the Tribunal's interpretation is adopted then the subject building would comprise seven storeys and would therefore be considered a HRB, irrespective of its height in metres, and accordingly should be registered with the Building Safety Regulator (BSR) and be managed under the HRB regime.

Other interesting findings

The Applicant leaseholders were concerned about the aesthetics of the building following the remediation works. The leaseholders were also concerned that the Respondent landlord intended to instruct the same contractor who constructed the building and was linked to the landlord.

The Tribunal did not assist the leaseholders with these concerns. It did not consider that it had the power to make an order specifying the materials and/or style to be adopted in carrying out the works, or direct which contractors are used to carry out the works.  The Tribunal also considered that the production of the tender report provided the leaseholders with sufficient information. The landlord was not required to produce the contractors' original tenders.

Key Takeaway

Parties may wish consider whether they have any 'marginal' buildings which, following further direction from the Government and BSA, may now fall under the HRB regime.