The First-Tier Tribunal (FTT) have provided clarity on what constitutes a "higher-risk building" (HRB) under section 65 of the Building Safety Act 2022 (BSA), ruling that a rooftop garden is to be included when measuring the elevation of a building.
Following the Grenfell Tower tragedy, the BSA was implemented to create a new fire safety regime, particularly for tall buildings. Existing HRBs needed to be registered with the Building Safety Regulator by 30 September 2023, with new HRBs subject to enhanced scrutiny in the planning and construction phase.
These definitions are highly relevant for buildings which fall below certain safety standards, in particular those with unsafe cladding systems. The FTT has the power to require landlords to remediate unsafe buildings by way of a remediation order. Under section 123 of the BSA, a remediation order is a time stipulated order for a "relevant landlord" to remedy specified "relevant defects" in a "relevant building".
In Blomfield and others -v- Monier Road Limited the landlord challenged an application of the tenants for remediation of all combustible materials, including those on a rooftop garden. The garden space contained decking with a capacity of up to 50 people. The landlord challenged the order sought on the basis that the roof space did not count as the final (seventh) storey and the property, accordingly, was not an HRB.
What is a "higher-risk building"?
Under Section 65 of the BSA, a "higher-risk building" is defined as
"...a building in England that—
(a) is at least 18 metres in height or has at least 7 storeys, and
(b) contains at least 2 residential units."
Section 65 is subject to regulations which the Secretary of State may make from time to time. These comprise The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (the Regulations). The relevant parts of the Regulations contain a description of how to measure height and count storeys.
Significantly, a building is to be measured, and floors counted from ground level to:
"the top of the floor surface of the top storey of the building (ignoring 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)."; and
"when determining the number of storeys a building has the following is to be ignored—...
(b)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;"
The Government issued guidance on the 21 June 2023 providing clarification as to what section 65 and the Regulations sought to achieve in practice. The guidance noted that:
"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."
Are rooftop gardens to be excluded?
The FTT was asked to consider whether, for the purposes of a remediation order, a building with six floors (one commercial level and five storeys of residential units), and a roof terrace containing a roof garden, plant, and machinery constituted an HRB.
Applying section 65 and the Regulations, the FTT noted that any storey containing exclusively machinery/plant is not to be counted when calculating the number of storeys or measuring. Thus, the FTT held that by implication, if that space also contained a useable roof top with a roof garden together with plant/machinery, that would count as a storey.
The FTT noted that the Government guidance "contradict" the statutory provisions and that it was not clear where this guidance comes from (having no references or sources). Significantly, the FTT noted that the Government web-pages, which are often used as a means of explaining new legislation, do not constitute a reliable method of interpretation of law.
The FTT provided a logical interpretation of the statutory provisions taking authority from the regime as a whole; fire safety concerns need to assess where people will be in a building in the event of fire. If a person is on the top floor, even if it is a rooftop garden, consideration needs to be given to the time in which fire may spread compared to the time it would take for an evacuation.
Accordingly, the FTT ordered the landlord to remove combustible materials, to be replaced with "appropriate non-combustible alternatives" by the end of September 2025.
Comment
The decision will be a cause of concern for those who have relied on the referenced Government guidance in considering whether their building constitutes an HRB. Although Government guidance will never be a substitute for legal advice, this case casts doubt on the efficacy of the drafting between draftsman of legislation and Government of the day. Previous clear guidance has been dismissed as a means of statutory interpretation.
Although a specific determination, this decision may well provide useful clarity to all practitioners as to how the FTT is likely to interpret the BSA and the Regulations in the future.
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