David Owens and Helen Arthur explore a recent First Tier Tribunal decision regarding the meaning of “higher-risk building’ under the Building Safety Act 2022.
The First-Tier Tribunal (FTT) has considered the meaning of “higher-risk building’ (HRB) under section 65 of the Building Safety Act 2022 (BSA).
We take a look at the FTT decision in Blomfield and others -v- Monier Road Limited below. A copy of the decision can be found here.
An application was made for a Remediation Order under section 123 BSA by a number of leaseholders in Smoke House and Curing House in Hackney Wick, East London. A Remediation Order can be made by the FTT requiring a ‘relevant landlord’ to remedy specified ‘relevant defects’ in a ‘relevant building’.
The building consists of 45 flats with commercial space on the ground floor built around an internal courtyard. There is also access to a roof terrace.
The application sought an order requiring the remediation of elements of the building including to the internal courtyards, balconies, communal walkways and the roof terrace.
Before the hearing the landlord carried out a fire risk assessment and a fire risk appraisal of the external wall which formed the basis of a draft remediation order it put forward prior to the hearing. The Tribunal noted issues with the landlord’s fire risk assessments, including whether the building should be regarded as an HRB which hadn’t been considered in the assessments.
Consideration of whether the building was an HRB was important given that if it was, then it would need to be registered with the Building Safety Regulator (BSR), a Principal Accountable Person would need to be appointed, and any works being carried out to it (subject to limited exceptions) would need approval from the BSR.
What is an HRB?
The definition of an HRB is set out in Section 65 of the BSA. This states that:
65 Meaning of “higher-risk building” etc
(1) In this Part “higher-risk building” means a building in England that—
(2) The Secretary of State may by regulations make provision supplementing
this section.
The Regulations made pursuant to Section 65 of the BSA are The Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (HRB Regulations).
Determining a ‘storey’ is set out in paragraph 6 HRB Regulations and states:
“When determining the number of storeys a building has the following is to be ignored…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 FTT considered that this would therefore mean that a roof terrace together with roof top plant and machinery would count as a storey.
The FTT went on to highlight the disconnect between the HRB Regulations and the government guidance published online which sets out how to determine whether a building is an HRB. The guidance currently says:
“Roof-tops
When counting storeys, any storeys which contain exclusively rooftop machinery or rooftop plant rooms should not be counted. Rooftop machinery is machinery which provides services to the building (for example, an air-conditioning system). Plant rooms are areas which contain machinery or equipment that provides services to the building. Only rooftop plant rooms and areas made up exclusively of rooftop machinery are excluded – for example, if floor three of a seven storey building contained exclusively plant rooms and machinery, it should still be counted as a storey.
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. When measuring the height of a building, the building should be measured up to the top of the floor surface of the top storey that is not exclusively rooftop machinery or plant rooms.”
The FTT highlighted that the guidance appears to contradict the regulations noting: “The regulations appear to provide that a roof top can be a storey save for the one exception where that storey has plant/machinery, however the guidance appears to say that there are other exceptions.”
The FTT concluded that the guidance is continually being updated and that “the evolution, amendment, addition to and in some cases withdrawal result in a continuously changing resource. There is no index, no library or consistent route to these notes and a number overlap. It is challenging to know which is the latest version or to find notes that covers certain areas…These web pages therefore do not constitute a reliable method of interpretation of law.”
Whilst the FTT confirmed that it was not for the Tribunal to specify under the terms of a Remediation Order it did consider that in this case the roof terrace counted towards the number of storeys and that the building should be an HRB.
This would then mean the building would need to be registered with the BSR and have a Principal Accountable Person appointed.
Conclusion
In response to this decision, The Ministry of Housing, Communities and Local Government and the Building Safety Regulator have recently announced that they 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.
In the meantime, the sector and regulatory bodies should continue to refer to existing government guidance. We recognise that the views expressed by the Tribunal may have created some uncertainty within the sector.
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.”
The decision by the FTT highlights the inconsistencies between the guidance and the legislation and care should be taken in that regard. Those who relied on just the guidance may now be faced with buildings falling within the meaning of an HRB.
If you have a query on a specific Building Safety Act related issue or on any construction project and would like to discuss this further please get in touch with our construction team here.
David Owens is a Partner and Helen Arthur is a Senior Professional Support Lawyer at Sharpe Pritchard LLP.
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