ARTICLE
2 June 2025

Roof Garden Storeys: New MHCLG Guidance Reiterates That FTT Is Wrong

D
Devonshires

Contributor

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Based in the City of London for over 150 years, Devonshires is a leading practice providing high-quality, accessible and value-for-money services to domestic and international clients, including developers, local authorities, housing associations and financial services firms. The practice focuses on building strong, long-lasting relationships in order to achieve outstanding results based on practical advice. The foundation of its success is its commitment to people, both its own and those working for its clients. The firm ensures its staff have access to high-quality training and fosters ‘one to one’ connections between its solicitors and clients.

The firm acts on a broad range of matters including projects, property and real estate, securitisation, construction, housing management, commercial litigation, employment, banking, corporate work, and governance. The practice is a leader in social housing, including working on many development projects nationwide and helping to draft legislation.

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.
United Kingdom Real Estate and Construction

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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