When is a “storey” to be identified and counted for higher-risk building purposes? Recent uncertainty created over Government’s guidance

Nicholas Blomfield & Others v Monier Road Limited is an interesting First-Tier Tribunal decision on the status and treatment of government guidance regarding the “higher-risk building” (HRB) criteria under the Building Safety Act 2022 (BSA 2022) and Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.

Tribunal’s Decision

A decision concerning an application for a Remediation Order under Section 123 of the BSA 2022 was made in July 2024. Certain provisions of the BSA 2022 are applicable to HRBs, which are generally defined as buildings with a height of at least 18 metres, or having at least seven storeys, and containing a minimum of two residential units. A central issue in this case was whether a roof garden should be considered a storey when determining whether a building meets the HRB height and storey criteria. Under Regulation 6(1)(b) of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023, a storey is to be ignored if it is a roof-top machinery or roof-top plant area, or consists exclusively of roof-top machinery or plant rooms.

The Government had also released guidance documents on this topic (see further below). This stated 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”[1]. The Tribunal, however, called the status of this guidance into question by finding there was no statutory definition of what constitutes a “storey“. It also indicated that “…the guidance appears to not only add to the statutory provisions, but also to contradict them“.

The Applicant sought to have the building declared a HRB under the BSA 2022; however, the Respondent objected, and the Tribunal recognised it lacked jurisdiction to make such a declaration. Notwithstanding the Government’s guidance, the Tribunal determined that a useable rooftop terrace (i.e. one that did not just contain plant and machinery) did count as a “storey“. In this instance, the building would be deemed a seven-storey structure, thereby fulfilling the HRB criteria.

Government review

According to this statement and other recent social media reports (such as by the Health & Safety Executive and Build UK) the Ministry of Housing, Communities and Local Government and the Building Safety Regulator (BSR) are considering the Tribunal’s views. In the meantime, sector and regulatory bodies are encouraged to “continue to refer to existing government guidance” on the HRB criteria despite the apparent uncertainty created (and until stated otherwise). The statement also confirms that the “BSR will continue to follow the statutory guidance which states “roof-top gardens are not considered storeys and should not be counted as such” when determining an HRB”.

Commentary

Despite an array of BSA-related web-based (and other) guidance, which is often cited and persuasive, it may not always be applied or interpreted consistently in BSA-related matters, as shown in this case. The decision highlights that some advisory webpages have extensively evolved post-Grenfell and cover topics from basic legislative references to complex compliance points. However, these webpages may be updated, and many guidance notes include disclaimers on their usage and application. Despite this, the BSR still promotes the use and adherence to such guidance.

The Phase 2 Report on the Grenfell Tower fire has recommended a review of the HRB definition, considering the height-based link to be arbitrary. This could expand the scope of new projects and existing buildings falling within the enhanced HRB regime in the future. For more information on potential further change to building safety laws, listen to our “Digesting the Grenfell Report” podcast.

If you need assistance on the content of this update, please contact the authors or your Beale & Co lawyer.

[1] Government guidance on Section 65 BSA 2022 and Regulations, 21 June 2023