
Insight
How tall a building is and how many storeys it has forms part of the considerations when deciding what parts of the Building Safety Act 2022 (The Act) apply to a building. Generally, if the building is over 5 storeys and 11 metres it may be a relevant building and if it is over 7 storeys or 18 metres it may be a higher-risk building. Therefore, the height of a building has important consequences as it could dictate that the building must be registered with the Building Safey Regulator and enhanced safety standards are applicable not only when a new higher-risk building is constructed, but also potentially to any subsequent alterations, and also to the building safety regime put in place when they are occupied.
The recent decision of the First Tier Tribunal (FtT) relating to Smoke House & Curing House, 18 Remus Road, London E3 2NF creates uncertainty in relation to whether “useable” roof space should or should not be counted as a storey. In this decision the FtT concluded that a roof terrace containing a roof garden as well as plant and machinery did count as a storey which seems contrary to what is set out in current Government guidance on counting storeys in accordance with the Act.
Not only does this present an element of confusion, but adopting the FtT’s interpretation of measuring storeys of a building could bring more buildings into the scope of the Act and therefore subject to the strict regime of building safety.
You can find the full version of the decision here: Smoke House & Curing House, 18 Remus Road, London E3 2NF: LON/00BG/HYI/2023/0024 – GOV.UK
The FtT opined that Government guidance incorrectly adds to (and contradicts) the legislation where it states 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.”
The FtT’s interpretation of the legislation seems to be that:
Therefore, the block of flats in question at Smoke House & Curing House which consisted of commercial premises on the ground floor, five storeys of residential flats and then a roof terrace containing a roof garden with plant and machinery, in the Tribunal’s assessment was 7 storeys and should be considered as a higher-risk building.
In reaching this conclusion they stated: “One of the concerns behind the definition of ‘storey’ for fire safety considerations must be where people might be located [in] the event of a fire. Clearly, person[s] 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”.
The FtT’s decision is not binding. However, it may be an indication as to how this question is now approached by tribunals and courts. It is also important to note that the issue regarding this building’s height was raised of the FtT’s own motion and was not the principal consideration of the case.
Following this decision, new notices have been added to Government guidance including:
The notices state:
“The Ministry of Housing, Communities and Local Government and the Building Safety Regulator are currently considering the views expressed by the Tribunal in the recent First Tier Tribunal decision that roof gardens should be classified as a storey when determining whether a building meets the height and storey criteria under the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023.
“It is important to note the Tribunal itself acknowledged it was not within its jurisdiction to formally determine whether the building being considered was a higher-risk building. Until stated otherwise, the sector and regulatory bodies should continue to refer to existing government guidance.”
It seems likely that we can expect new regulations to clarify what is and is not a storey for the purposes of the Act, especially as in the Phase 2 report of the Grenfell enquiry, the report recommended that the definition of a higher-risk building is reviewed stating: “We do not think that to define a building as “higher-risk” by reference only to its height is satisfactory, being essentially arbitrary in nature. More relevant is the nature of its use and, in particular, the likely presence of vulnerable people, for whom evacuation in the event of a fire or other emergency would be likely to present difficulty. We therefore recommend that the definition of a higher-risk building for the purposes of the Building Safety Act be reviewed urgently.”
It therefore seems that 2025 may bring even greater change in this area and the classification of higher-risk buildings. Building owners, and anyone involved in construction or occupation or management of buildings must watch this space!
With thanks to Olivia Nichol for her help in putting this article together.