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The ruling said: “The [Building Safety] Act provided that the [Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023] could define ‘storey’, the regulations do not contain that definition but the guidance purports to provide such a definition.
“The regulations appear to provide that a rooftop 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 first-tier tribunal decision is currently being appealed at the upper tribunal.
Government’s advice
Following the confusion arising from this contradiction, the government published a note in October 2024 asking construction and regulatory bodies to continue using its official advice to determine whether a building is higher risk.
The Building Safety Act 2022 defines HRBs as buildings with at least two residential units, care homes and hospitals which are at least 18m in height or have at least seven storeys.
Yesterday (28 May), the MHCLG published a new notice on Gov.uk stating that after “carefully considering” the first-tier tribunal decision in Smoke House & Curing House, its “view remains that roof gardens are not storeys for these purposes”.
It added: “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.”
The Grenfell Tower Inquiry’s Phase 2 report recommended an urgent review of the current definition of HRB used in the Building Safety Act 2022 to take into account the building’s use and whether vulnerable people are present.
The Inquiry concluded that categorising a building as HRB based primarily on its height was arbitrary and not satisfactory.
