Roof terraces and higher-risk buildings - Revision history

Designing Buildings at 07:20, 20 June 2025

2025-06-20T07:20:01Z

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	Some of the relevant sections of the referenced documents are included here below for further information.		Some of the relevant sections of the referenced documents are included here below for further information.
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		+	= Upper Tribunal judgment =
		+
		+	On 28 May 2025, the Upper Tribunal reviewed the First Teir Tribunal's handling of the case, and found: “public expression of its opinion in its decision, including its comments on government guidance, has doubtless caused concern and confusion for building safety professionals. All of this illustrates how dangerous it is for a tribunal to express a view about a matter that is not within its jurisdiction.”
		+
		+	You can read the decision here: [https://landschamber.decisions.tribunals.gov.uk/Aspx/view.aspx?id=2105 https://landschamber.decisions.tribunals.gov.uk/Aspx/view.aspx?id=2105]

	[[File:MHCLG_2-Campaign-Site_Home-page_Register-Your-Building-900.jpg\|link=File:MHCLG_2-Campaign-Site_Home-page_Register-Your-Building-900.jpg]]		[[File:MHCLG_2-Campaign-Site_Home-page_Register-Your-Building-900.jpg\|link=File:MHCLG_2-Campaign-Site_Home-page_Register-Your-Building-900.jpg]]

Editor at 04:25, 31 May 2025

2025-05-31T04:25:24Z

← Older revision		Revision as of 04:25, 31 May 2025
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	The complexity of the specific relationship between the use of the roof space and the bearing it has on categorising a building as higher risk was highlighted by a first-tier tribunal, property chamber case regarding [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 Smoke House & Curing House]. The tribunal report asked, "Is the building in the higher risk category?" and in turn answered by saying, "Unfortunately, this is not a straightforward question even after a consideration of the relevant law and guidance."		The complexity of the specific relationship between the use of the roof space and the bearing it has on categorising a building as higher risk was highlighted by a first-tier tribunal, property chamber case regarding [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 Smoke House & Curing House]. The tribunal report asked, "Is the building in the higher risk category?" and in turn answered by saying, "Unfortunately, this is not a straightforward question even after a consideration of the relevant law and guidance."

−	= MHCLG ~~and~~ BSR review First Tier Tribunal on ~~classification of~~ roof ~~gardens in HRBs~~ =	+	= MHCLG / BSR review and respond to First Tier Tribunal on HRB roof garden classification =

	BSR will continue to follow the statutory guidance which states “rooftop gardens are not considered storeys and should not be counted as such” when determining an HRB. [https://buildingsafety.campaign.gov.uk/building-safety-regulator-making-buildings-safer/building-safety-regulator-news/mhclg-and-building-safety-regulator-bsr-reviewing-first-tier-tribunal-on-classification-of-roof-gardens-in-higher-risk-buildings/ On 21 October a Statement was published from MHCLG], which read:		BSR will continue to follow the statutory guidance which states “rooftop gardens are not considered storeys and should not be counted as such” when determining an HRB. [https://buildingsafety.campaign.gov.uk/building-safety-regulator-making-buildings-safer/building-safety-regulator-news/mhclg-and-building-safety-regulator-bsr-reviewing-first-tier-tribunal-on-classification-of-roof-gardens-in-higher-risk-buildings/ On 21 October a Statement was published from MHCLG], which read:

Editor at 04:23, 31 May 2025

2025-05-31T04:23:28Z

← Older revision		Revision as of 04:23, 31 May 2025
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	"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."		"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."

−	On 28 May 2025, the Ministry of Housing, Communities and Local Government formally responded to the Tribunal in the First-tier Tribunal decision dated 3 July 2024. It stated that they 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. In the meantime, the department’s view remains that roof gardens are not storeys for these purposes.This is the basis for current government guidance, which the sector and regulatory bodies should continue to refer to. Ref [https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building]	+	On 28 May 2025, the Ministry of Housing, Communities and Local Government formally responded to the Tribunal in the First-tier Tribunal decision dated 3 July 2024. It stated that they 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. In the meantime, the department’s view remains that roof gardens are not storeys for these purposes.This is the basis for current government guidance, which the sector and regulatory bodies should continue to refer to. Ref [https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building].
		+
		+	"MHCLG and Building Safety Regulator (BSR) reviewing First Tier Tribunal on classification of roof gardens in higher-risk buildings. BSR will continue to follow the statutory guidance which states “rooftop gardens are not considered storeys and should not be counted as such” when determining an HRB."
		+
		+	Ref: [https://buildingsafety.campaign.gov.uk/building-safety-regulator-making-buildings-safer/building-safety-regulator-news/mhclg-and-bsr-reviewing-first-tier-tribunal-on-classification-of-roof-gardens/ https://buildingsafety.campaign.gov.uk/building-safety-regulator-making-buildings-safer/building-safety-regulator-news/mhclg-and-bsr-reviewing-first-tier-tribunal-on-classification-of-roof-gardens/]

	= Interpretation of the guidance and relationship to legislation =		= Interpretation of the guidance and relationship to legislation =

Editor at 04:17, 31 May 2025

2025-05-31T04:17:10Z

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	[[File:Gov_UK_guidance_on_HRBs_title_and_diagram_11_1000.jpg\|link=https://www.gov.uk/guidance/criteria-for-being-a-higher-risk-building-during-the-occupation-phase-of-the-new-higher-risk-regime]]		[[File:Gov_UK_guidance_on_HRBs_title_and_diagram_11_1000.jpg\|link=https://www.gov.uk/guidance/criteria-for-being-a-higher-risk-building-during-the-occupation-phase-of-the-new-higher-risk-regime]]

−	= ~~Introduction~~ and context of higher-risks =	+	= Background, introduction and context of higher-risks =

	In the wake of the Grenfell Tower fire in 2017 and the subsequent reviews and public inquiry, all those involved with construction need to ensure such a tragedy can never happen again. The Building Safety Act and related legislation created an entirely new building safety regime that impacts everyone involved in the planning, commissioning, design, construction, surveying, maintenance, and management of buildings and the built environment. The nature, definition, management, and remediation of higher-risk buildings have been key elements of this building safety regime.		In the wake of the Grenfell Tower fire in 2017 and the subsequent reviews and public inquiry, all those involved with construction need to ensure such a tragedy can never happen again. The Building Safety Act and related legislation created an entirely new building safety regime that impacts everyone involved in the planning, commissioning, design, construction, surveying, maintenance, and management of buildings and the built environment. The nature, definition, management, and remediation of higher-risk buildings have been key elements of this building safety regime.
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	"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."		"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."

−	On 28 May 2025, the Ministry of Housing, Communities and Local Government formally responded to the Tribunal in the First-tier Tribunal decision dated 3 July 2024. It stated that they 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. In the meantime, the department’s view remains that roof gardens are not storeys for these purposes.This is the basis for current government guidance, which the sector and regulatory bodies should continue to refer to. Ref https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building	+	On 28 May 2025, the Ministry of Housing, Communities and Local Government formally responded to the Tribunal in the First-tier Tribunal decision dated 3 July 2024. It stated that they 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. In the meantime, the department’s view remains that roof gardens are not storeys for these purposes.This is the basis for current government guidance, which the sector and regulatory bodies should continue to refer to. Ref [https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building]

	= Interpretation of the guidance and relationship to legislation =		= Interpretation of the guidance and relationship to legislation =

Designing Buildings at 07:20, 30 May 2025

2025-05-30T07:20:33Z

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	"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."		"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."
		+
		+	On 28 May 2025, the Ministry of Housing, Communities and Local Government formally responded to the Tribunal in the First-tier Tribunal decision dated 3 July 2024. It stated that they 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. In the meantime, the department’s view remains that roof gardens are not storeys for these purposes.This is the basis for current government guidance, which the sector and regulatory bodies should continue to refer to. Ref https://www.gov.uk/guidance/criteria-for-determining-whether-a-new-building-that-is-being-designed-and-constructed-is-a-higher-risk-building

	= Interpretation of the guidance and relationship to legislation =		= Interpretation of the guidance and relationship to legislation =

Designing Buildings at 06:06, 24 October 2024

2024-10-24T06:06:26Z

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−	There is the possibility for the respondents to appeal the decision. [[w/index.php?title=W/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DAppeals_to_First-Tier_Tribunals%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1&action=edit&redlink=1\|Appeals to First-Tier Tribunals]] must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:	+	There is the possibility for the respondents to appeal the decision. They must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:

	* The First-Tier Tribunal applied the law incorrectly.		* The First-Tier Tribunal applied the law incorrectly.
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	* [https://www.legislation.gov.uk/ukpga/2022/30/part/5/crossheading/construction-products-costs-contribution-orders https://www.legislation.gov.uk/ukpga/2022/30/part/5/crossheading/construction-products-costs-contribution-orders]		* [https://www.legislation.gov.uk/ukpga/2022/30/part/5/crossheading/construction-products-costs-contribution-orders https://www.legislation.gov.uk/ukpga/2022/30/part/5/crossheading/construction-products-costs-contribution-orders]

−	~~[[Category:Articles_needing_more_work]]~~ [[Category:DCN_Commentary]] [[Category:DCN_Guidance]] [[Category:DCN_Legislation]] [[Category:DCN_News]] [[Category:DCN_Organisation]] [[Category:DCN_Policy]] [[Category:DCN_Project_Knowledge]] [[Category:DCN_Regulation]] [[Category:DCN_Report]] [[Category:DCN_Specification]] [[Category:DCN_Standard]] [[Category:Definitions]] [[Category:Projects_and_case_studies]] [[Category:Publications_/_reports]] [[Category:Case_law]] [[Category:Other_legislation]] [[Category:Planning_permission]] [[Category:Policy]] [[Category:Property_law]] [[Category:Regulations]] [[Category:Standards_/_measurements]] [[Category:Client_procedures]] [[Category:Construction_management]] [[Category:Property_development]] [[Category:Public_procedures]] [[Category:Roles_/_services]] [[Category:Building_safety]]	+	[[Category:DCN_Commentary]] [[Category:DCN_Guidance]] [[Category:DCN_Legislation]] [[Category:DCN_News]] [[Category:DCN_Organisation]] [[Category:DCN_Policy]] [[Category:DCN_Project_Knowledge]] [[Category:DCN_Regulation]] [[Category:DCN_Report]] [[Category:DCN_Specification]] [[Category:DCN_Standard]] [[Category:Definitions]] [[Category:Projects_and_case_studies]] [[Category:Publications_/_reports]] [[Category:Case_law]] [[Category:Other_legislation]] [[Category:Planning_permission]] [[Category:Policy]] [[Category:Property_law]] [[Category:Regulations]] [[Category:Standards_/_measurements]] [[Category:Client_procedures]] [[Category:Construction_management]] [[Category:Property_development]] [[Category:Public_procedures]] [[Category:Roles_/_services]] [[Category:Building_safety]]

Designing Buildings at 06:04, 24 October 2024

2024-10-24T06:04:55Z

Editor at 19:20, 21 October 2024

2024-10-21T19:20:43Z

← Older revision		Revision as of 19:20, 21 October 2024
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	The complexity of the specific relationship between use of the roof space and the bearing it has on categorising a building as higher risk was highlighted by a first-tier tribunal, property chamber case regarding [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 Smoke House & Curing House]. The tribunal report asked, "Is the building in the higher risk category?" and in turn answered by saying, "Unfortunately, this is not a straightforward question even after a consideration of the relevant law and guidance."		The complexity of the specific relationship between use of the roof space and the bearing it has on categorising a building as higher risk was highlighted by a first-tier tribunal, property chamber case regarding [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 Smoke House & Curing House]. The tribunal report asked, "Is the building in the higher risk category?" and in turn answered by saying, "Unfortunately, this is not a straightforward question even after a consideration of the relevant law and guidance."
		+
		+	= MHCLG and BSR review First Tier Tribunal on classification of roof gardens in HRBs =
		+
		+	BSR will continue to follow the statutory guidance which states “rooftop gardens are not considered storeys and should not be counted as such” when determining an HRB. [https://buildingsafety.campaign.gov.uk/building-safety-regulator-making-buildings-safer/building-safety-regulator-news/mhclg-and-building-safety-regulator-bsr-reviewing-first-tier-tribunal-on-classification-of-roof-gardens-in-higher-risk-buildings/ On 21 October a Statement was published from MHCLG], which read:
		+
		+	"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."
		+
		+	"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."

	= Interpretation of the guidance and relationship to legislation =		= Interpretation of the guidance and relationship to legislation =
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	This is a brief summary of some of the key points contained within the tribunal, but the case indeed touches upon many interrelated building safety issues, and for a full understanding of this case, it is recommended to refer [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 to the full 9-page documentation]. However, in particular, this might be considered as displaying how application of the law itself, as it stands, requires a holistic case-by-case sense-check assessment, and that guidance should not be applied without this. It does also indicate some of the failings of related documentation in its fragmented complex and sometimes contradictory nature, both general themes which were also highlighted in the Grenfell Inquiry phase 2 final report (see sections above). Some of the relevant sections of the referenced documents are included here below for further information.		This is a brief summary of some of the key points contained within the tribunal, but the case indeed touches upon many interrelated building safety issues, and for a full understanding of this case, it is recommended to refer [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 to the full 9-page documentation]. However, in particular, this might be considered as displaying how application of the law itself, as it stands, requires a holistic case-by-case sense-check assessment, and that guidance should not be applied without this. It does also indicate some of the failings of related documentation in its fragmented complex and sometimes contradictory nature, both general themes which were also highlighted in the Grenfell Inquiry phase 2 final report (see sections above). Some of the relevant sections of the referenced documents are included here below for further information.
		+
		+	[[File:MHCLG 2-Campaign-Site Home-page Register-Your-Building-900.jpg]]

	= Guidance criteria for higher risk buildings =		= Guidance criteria for higher risk buildings =
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−	There is the possibility for the respondents to appeal the decision. [[w/index.php?title=W/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DAppeals_to_First-Tier_Tribunals%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1&action=edit&redlink=1\|Appeals to First-Tier Tribunals]] must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:	+	There is the possibility for the respondents to appeal the decision. [[w/index.php?title=W/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DAppeals_to_First-Tier_Tribunals%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1&action=edit&redlink=1\|Appeals to First-Tier Tribunals]] must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:

	* The First-Tier Tribunal applied the law incorrectly.		* The First-Tier Tribunal applied the law incorrectly.

Editor at 07:47, 18 October 2024

2024-10-18T07:47:20Z

Editor at 07:32, 18 October 2024

2024-10-18T07:32:43Z

← Older revision		Revision as of 07:32, 18 October 2024
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	A [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 full copy of the tribunal case LON/00BG/HYI/2023/0024 can be found here], but below is a brief summary followed by terms, and documents relevant to and referenced by the case.		A [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 full copy of the tribunal case LON/00BG/HYI/2023/0024 can be found here], but below is a brief summary followed by terms, and documents relevant to and referenced by the case.

−	The case concerned an application for a remediation order under section 123 of the Building Safety Act 2022 for the remediation of elements of the building (identified in the original application as cladding to the internal courtyard) which represented a fire safety risk and to obtain disclosure and information regarding the fire safety assessment that was carried out on the building. The leaseholder applicants cited flats (which are owned by a mix of the respondent, leaseholders on long leases, shared ownership leaseholders and Housing Association sub-lets on short-term) that were difficult to sell and mortgage due to the fire safety issues. The respondent had not contested the remediation order, agreed to do works, and confirmed the program would not be reliant on the result of an application to receive Building Safety Funds which they were awaiting a response on. However based on the fire safety assessments, these works ( which had already been put out to tender and a contractor selected) did not include the cladding to the internal courtyard.	+	The case concerned an application for a remediation order under section 123 of the Building Safety Act 2022 for the remediation of elements of the building (identified in the original application as cladding to the internal courtyard) which represented a fire safety risk and to obtain disclosure and information regarding the fire safety assessment that was carried out on the building. The leaseholder applicants cited flats (which are owned by a mix of the respondent, leaseholders on long leases, shared ownership leaseholders and Housing Association sub-lets on short-term) that were difficult to sell and mortgage due to the fire safety issues.
		+
		+	The respondent had not contested the remediation order, agreed to do works, and confirmed the program would not be reliant on the result of an application to receive Building Safety Funds which they were awaiting a response on. However based on the fire safety assessments, these works (which had already been put out to tender and a contractor selected) did not include the cladding to the internal courtyard.

	On inspection of the two fire safety reports which were: a Health, Safety and Fire report as well as a Fire Risk Appraisal of the External Wall (FRAEW) the tribunal raised a number of issues. One issue in particular was the assumption that the building was not higher risk, the three concerns of the tribunal were as follows:		On inspection of the two fire safety reports which were: a Health, Safety and Fire report as well as a Fire Risk Appraisal of the External Wall (FRAEW) the tribunal raised a number of issues. One issue in particular was the assumption that the building was not higher risk, the three concerns of the tribunal were as follows:
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	* (c) What account had been taken of the risks contributed to the building as a whole by the bin store, flat entrance doors, and louvres and panels to windows/balconies		* (c) What account had been taken of the risks contributed to the building as a whole by the bin store, flat entrance doors, and louvres and panels to windows/balconies

−	The first item, whereby respondents had, based on government guidance made the assumption that although the building was over 18 metres, it was not 7 storeys as the last is a roof terrace. The tribunal essentially contested this, highlighting Paragraph 5 of the guidance that “Diagrams in this guidance document show examples of potential buildings and are for illustrative purposes only. You will need to consider the legislation carefully to understand whether you are responsible for a higher-risk building in scope of the higher-risk regime. You may wish to seek legal advice on this”. ~~Instead the~~ tribunal to a risk based approach to assessing the 'use' of the roof garden (as well as its secondary function in an emergency) stating:	+	The first item, whereby respondents had, based on government guidance made the assumption that although the building was over 18 metres, it was not 7 storeys as the last is a roof terrace. The tribunal essentially contested this, highlighting Paragraph 5 of the guidance that “Diagrams in this guidance document show examples of potential buildings and are for illustrative purposes only. You will need to consider the legislation carefully to understand whether you are responsible for a higher-risk building in scope of the higher-risk regime. You may wish to seek legal advice on this”.
		+
		+	The tribunal noted that the original Building Regulations approval for the original construction (from 2019) was for a 7-storey building but also instead turned to risk based approach to assessing the 'use' of the roof garden (as well as its secondary function in an emergency) stating: "Despite section 65 of the Building Safety Act providing that the regulations could define ‘storey’, there is no such definition in the regulations. However, in the secondary legislation, regulations 5 & 611 provide that any storey containing exclusively machinery/plant is not to be counted when calculating the number of storeys or measuring. This, by implication, would therefore mean that a useable roof top containing a roof garden together with plant/machinery would count as a storey (item 62)." An argument from the respondent that with out enclosure the roof should not be counted as a storey was investigated by the tribunal but dismissed or at least dismissed because of the lack of clear documentation including this with in the definition of a storey.
		+
		+	"This in turn would lead one to conclude that for the subject building, there are seven storeys. There are commercial premises on the ground floor, then five storeys of residential flats and then a roof terrace containing a roof garden and plant and machinery. If there are seven storeys, then regardless of measurement, the building is higher-risk as defined in Part 4 of the Building Safety Act (item 63)."
		+
		+	The tribunal went to some lengths to analyse guidance and highlighted for example 'guidance appears to not only add to the statutory provisions, but also to contradict them.' Significantly though the tribunal questioned the lack of a holistic risk assessment as not therefore assessing the building safety risk in accordance with the requirements of the Building Safety Act. In particular the possibility of the the roof terrace being used as an access route to a second stair in an emergency indicated that the internal courtyard cladding was a fire risk. The tribunal concluded that "In terms of the combustible materials in the balconies, communal walkways and roof terrace, which constitute relevant defects, would, if left unremediated, still present a building safety risk even with the internal courtyard façades having been replaced with non-combustible materials (item 122). Furthermore, we consider that the bin stores will still present a building safety risk regardless of the works proposed by the Respondent and works will have to be undertaken to reduce that risk (item 123).
		+
		+	This is a brief summary of some of the key points contained within the tribunal, but the case indeed touches upon many interrelated building safety issues and for a full understanding of this case it is recommended to refer to the full 9 page documentation. However in particular this might be considered as displaying that application of the law itself, as it stands requires a holistic case by case sense check assessment, and not only that guidance should not be applied with out this but that related documentation is currently sometimes complex and contradictory.

	= Guidance criteria for higher risk buildings =		= Guidance criteria for higher risk buildings =
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	Note:		Note:

−	There is the possibility for the respondents to appeal the decision. [[w/index.php?title=W/index.php%3Ftitle%3DW/index.php%3Ftitle%3DAppeals_to_First-Tier_Tribunals%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1&action=edit&redlink=1\|Appeals to First-Tier Tribunals]] must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:	+	There is the possibility for the respondents to appeal the decision. [[w/index.php?title=W/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DAppeals_to_First-Tier_Tribunals%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1&action=edit&redlink=1\|Appeals to First-Tier Tribunals]] must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:

	* The First-Tier Tribunal applied the law incorrectly.		* The First-Tier Tribunal applied the law incorrectly.

← Older revision		Revision as of 07:47, 18 October 2024
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	The first item, whereby respondents had, based on government guidance made the assumption that although the building was over 18 metres, it was not 7 storeys as the last is a roof terrace. The tribunal essentially contested this, highlighting Paragraph 5 of the guidance that “Diagrams in this guidance document show examples of potential buildings and are for illustrative purposes only. You will need to consider the legislation carefully to understand whether you are responsible for a higher-risk building in scope of the higher-risk regime. You may wish to seek legal advice on this”.		The first item, whereby respondents had, based on government guidance made the assumption that although the building was over 18 metres, it was not 7 storeys as the last is a roof terrace. The tribunal essentially contested this, highlighting Paragraph 5 of the guidance that “Diagrams in this guidance document show examples of potential buildings and are for illustrative purposes only. You will need to consider the legislation carefully to understand whether you are responsible for a higher-risk building in scope of the higher-risk regime. You may wish to seek legal advice on this”.

−	The tribunal noted that the original Building Regulations approval for the original construction (from 2019) was for a 7-storey building but also instead turned to risk based approach to assessing the 'use' of the roof garden (as well as its secondary function in an emergency) stating: "Despite ~~section~~ 65 of the Building Safety Act providing that the regulations could define ~~‘storey’~~, there is no such definition in the regulations. However, in the secondary legislation, regulations 5 ~~&~~ 611 provide that any storey containing exclusively machinery/plant is not to be counted when calculating the number of storeys or measuring. This, by implication, would therefore mean that a useable roof top containing a roof garden together with plant/machinery would count as a storey (item 62)." An argument from the respondent that ~~with out~~ enclosure the roof should not be counted as a storey was investigated by the tribunal but dismissed or at least dismissed because of the lack of clear documentation including this ~~with~~ in the definition of a storey.	+	The tribunal noted that the original Building Regulations approval for the original construction (from 2019) was for a 7-storey building but also instead turned to a risk-based approach to assessing the 'use' of the roof garden (as well as its secondary function in an emergency), stating: "Despite Section 65 of the Building Safety Act providing that the regulations could define 'storey’, there is no such definition in the regulations. However, in the secondary legislation, regulations 5 and 611 provide that any storey containing exclusively machinery or plant is not to be counted when calculating the number of storeys or measuring. This, by implication, would therefore mean that a useable roof top containing a roof garden together with plant/machinery would count as a storey (item 62)." An argument from the respondent that without enclosure the roof should not be counted as a storey was investigated by the tribunal but dismissed, or at least dismissed, because of the lack of clear documentation including this in the definition of a storey.

−	"This in turn would lead one to conclude that for the subject building, there are seven storeys. There are commercial premises on the ground floor, then five storeys of residential flats and then a roof terrace containing a roof garden and plant and machinery. If there are seven storeys, then regardless of measurement, the building is higher-risk as defined in Part 4 of the Building Safety Act (item 63)."	+	"This in turn would lead one to conclude that for the subject building, there are seven storeys. There are commercial premises on the ground floor, then five storeys of residential flats, and then a roof terrace containing a roof garden and plant and machinery. If there are seven storeys, then regardless of measurement, the building is higher-risk as defined in Part 4 of the Building Safety Act (item 63)."

−	The tribunal went to some lengths to analyse guidance and highlighted for example 'guidance appears to not only add to the statutory provisions, but also to contradict them.' Significantly though the tribunal questioned the lack of a holistic risk assessment as not therefore assessing the building safety risk in accordance with the requirements of the Building Safety Act. In particular the possibility of ~~the~~ the roof terrace being used as an access route to a second ~~stair~~ in an emergency indicated that the internal courtyard cladding was a fire risk. The tribunal concluded that "In terms of the combustible materials in the balconies, communal walkways and roof ~~terrace~~, which constitute relevant defects, would, if left ~~unremediated~~, still present a building safety risk even with the internal courtyard façades having been replaced with non-combustible materials (item 122). Furthermore, we consider that the bin stores will still present a building safety risk regardless of the works proposed by the ~~Respondent~~ and works will have to be undertaken to reduce that risk (item 123).	+	The tribunal went to some lengths to analyse guidance and highlighted, for example, 'guidance appears to not only add to the statutory provisions but also to contradict them.' Significantly, though the tribunal questioned the lack of a holistic risk assessment as not therefore assessing the building safety risk in accordance with the requirements of the Building Safety Act. In particular, the possibility of the roof terrace being used as an access route to a second staircase in an emergency indicated that the internal courtyard cladding was a fire risk. The tribunal concluded that "In terms of the combustible materials in the balconies, communal walkways and roof terraces, which constitute relevant defects, would, if left un-remediated, still present a building safety risk even with the internal courtyard façades having been replaced with non-combustible materials (item 122). Furthermore, we consider that the bin stores will still present a building safety risk regardless of the works proposed by the respondent, and works will have to be undertaken to reduce that risk (item 123).

−	This is a brief summary of some of the key points contained within the tribunal, but the case indeed touches upon many interrelated building safety issues and for a full understanding of this case it is recommended to refer to the full 9 page documentation. However in particular this might be considered as displaying ~~that~~ application of the law itself, as it stands requires a holistic case by case sense check assessment, and ~~not only~~ that guidance should not be applied ~~with out~~ this ~~but that~~ related documentation ~~is currently sometimes~~ complex and contradictory.	+	This is a brief summary of some of the key points contained within the tribunal, but the case indeed touches upon many interrelated building safety issues, and for a full understanding of this case, it is recommended to refer [https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024 to the full 9-page documentation]. However, in particular, this might be considered as displaying how application of the law itself, as it stands, requires a holistic case-by-case sense-check assessment, and that guidance should not be applied without this. It does also indicate some of the failings of related documentation in its fragmented complex and sometimes contradictory nature, both general themes which were also highlighted in the Grenfell Inquiry phase 2 final report (see sections above). Some of the relevant sections of the referenced documents are included here below for further information.

	= Guidance criteria for higher risk buildings =		= Guidance criteria for higher risk buildings =
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	Extract from UK Gov Guidance '[https://www.gov.uk/guidance/criteria-for-being-a-higher-risk-building-during-the-occupation-phase-of-the-new-higher-risk-regime Criteria for determining whether a building is a higher-risk building during the occupation phase of the new higher-risk regime]'		Extract from UK Gov Guidance '[https://www.gov.uk/guidance/criteria-for-being-a-higher-risk-building-during-the-occupation-phase-of-the-new-higher-risk-regime Criteria for determining whether a building is a higher-risk building during the occupation phase of the new higher-risk regime]'

−	This guidance relates to the legal criteria for determining whether a building is considered a higher-risk building under the Building Safety Act 2022 and the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023. It relates to the definition of higher-risk building during the occupation phase of the higher-risk regime only.	+	This guidance relates to the legal criteria for determining whether a building is considered a higher-risk building under the Building Safety Act 2022 and the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023. It relates to the definition of higher-risk building during the occupation phase of the higher-risk regime only. Note that as highlighted by the tribunal case above the guidance states in Paragraph 5 that “Diagrams in this guidance document show examples of potential buildings and are for illustrative purposes only. You will need to consider the legislation carefully to understand whether you are responsible for a higher-risk building in scope of the higher-risk regime. You may wish to seek legal advice on this”.

	"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 7 storey building contained exclusively plant rooms and machinery, it should still be counted as a storey.		"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 7 storey building contained exclusively plant rooms and machinery, it should still be counted as a storey.
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	Note:		Note:

−	There is the possibility for the respondents to appeal the decision. [[w/index.php?title=W/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DAppeals_to_First-Tier_Tribunals%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1&action=edit&redlink=1\|Appeals to First-Tier Tribunals]] must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:	+	There is the possibility for the respondents to appeal the decision. [[w/index.php?title=W/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DW/index.php%3Ftitle%3DAppeals_to_First-Tier_Tribunals%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1%26action%3Dedit%26redlink%3D1&action=edit&redlink=1\|Appeals to First-Tier Tribunals]] must first apply for permission to do so, and in the first instance to the First-Tier Tribunal. Generally, this must be done within one month of the date of the tribunal’s decision notice or statement of reasons, and late appeals may not be accepted. Guidance indicates that this can only be done on the grounds that the Tribunal made an ‘error of law’. [https://commonslibrary.parliament.uk/appealing-benefits-decisions-beyond-the-first-tier-tribunal/ Examples of Errors of law are given as] potentially including:

	* The First-Tier Tribunal applied the law incorrectly.		* The First-Tier Tribunal applied the law incorrectly.