In these proceedings, which were brought by the leaseholders of Smoke House & Curing House (located in East London), the First-Tier Tribunal (FTT) questioned the criteria for 'higher-risk buildings' under the Building Safety Act 2022 (BSA) and concluded that roof gardens do count as an additional storey.
The FTT's application of Part 4 of the BSA (and the accompanying guidance) in this case is of particular interest because of the additional obligations that exist in respect of 'higher-risk buildings' e.g., the requirement to register the building and the statutory roles of accountable person / principal accountable person.
For a building to be classed as 'higher-risk' for the purposes of the BSA, it must be a building that is: -
(a) at least 18m in height or has at least 7 storeys, and
(b) contains at least 2 residential units.
The leaseholder group, led by My Blomfield, brought proceedings against their landlord, Monier Road Limited, for a remediation order under section 123 of the BSA. The purpose of the proceedings was to obtain an order from the Tribunal (a) requiring the remediation of elements of the building which represented a fire safety risk and (b) to obtain disclosure and information regarding the fire safety assessment of the building carried out by the Respondent.
In the course of determining the application, the FTT raised concerns regarding the fire risk assessment reports that had been obtained by the parties and in particular, queried whether the subject building is a 'higher-risk building'.
The FTT determined that the landlord (Monier Road Limited) must remedy several components of the building (including the balconies, walls and floor decking) but in doing so, it confirmed that it considered the subject building to have 7 storeys (including the roof garden as a storey) and therefore, that it is a 'higher-risk building'. In practical terms for the parties, this conclusion meant that the previously obtained fire-risk assessments (and therefore some of the proposed works) were not appropriate.
In reaching its decision as to whether the building was 'higher-risk', the FTT considered the BSA definitions, the Building Safety Regulations (Regulations) and the various accompanying Government guidance. Having reviewed the resources available to it, the FTT highlighted the following points:
- the approach to the definition of "storey" taken within the Government's guidance is inconsistent with that set out in the Regulations;
- the Regulations take priority over the guidance (the FTT decided to apply the definition within the Regulations and therefore reached a conclusion which is the opposite of that set out within the guidance); and
- that the various Government guidance (of which the FTT identified "more than 50 web-pages") can not be relied upon as a correct interpretation of law.
Whilst this is a decision of the FTT and therefore non-binding, it is noteworthy as it is the first judicial application of the statutory definition of storeys in the context of assessing whether or not a building is a higher-risk building. It is unusual for the FTT to engage in such detailed statutory interpretation but it is likely that it felt it would be helpful to do so given the scarcity of binding caselaw on these provisions at present.
Although the decision itself does not invalidate the Government guidance, it is possible that it may result in a review of that guidance to bring it into line with the Regulations*. It is to be hoped that this decision will be appealed and expedited, as until such time as there is a binding decision issued by the Upper Tribunal (Lands Chamber) or Court of Appeal, there will be significant uncertainty as to whether the Government guidance can be relied upon by landlords.
*UPDATE: Since this article was published, The Ministry of Housing, Communities and Local Government has published a notice at the top of its guidance confirming that it and the Building Safety Regulator are currently considering the views expressed by the FTT in this decision, and they have advised that until stated otherwise, the sector and regulatory bodies should continue to refer to existing government guidance.
