BSR Reviews Tribunal Decision Damning Govt Guidance on Roof Gardens

WITHERING VIEWS of government guidance on Building Regulations and roof gardens are being examined by the Building Safety Regulator.

The views were expressed by a judge in a recent First Tier Tribunal (Property Chamber) case that involved roof gardens being classified as a storey in a ‘Higher-Risk Building’.

The Ministry of Housing, Communities and Local Government (MHCLG) and the Building Safety Regulator (BSR) are reviewing the First Tier Tribunal (FTT) decision that roof gardens are to be counted as a storey.

The BSR said, “We recognise that the views expressed by the Tribunal may have created some uncertainty within the sector”.

The BSR added that while it considers the views expressed by the FTT, sector and regulatory bodies should continue to refer to existing government guidance.

Government Guidance Damned

However, the state of government guidance was damned by the FTT judge who said it was contradictory, inadequately referenced or dated and ‘challenging’ to use.

The judge commented on the government’s website pages where the guidance is provided, saying: “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.”

Building Regulations Guidance

The government guidance includes criteria for whether a rooftop garden should be considered a storey and therefore counted in assessing whether a building is categorised as higher risk. The guidance aims to help construction professionals comply with Approved Document B of the Building Regulations and the Building Safety Act 2022.

The judge concluded in his FTT decision that a rooftop garden storey should be included when assessing whether a building is higher risk or not, not least because, in the case of fire, people might well be on a rooftop garden and exposed to risk.

The judge said the 54m² roof terrace on the case’s building could hold up to 50 people and includes timber decking and planters constituting a potential fire risk and ‘relevant defects’.

The FTT case was brought by the occupants of Smoke House and Curing House in Tower Hamlets, London against landlord Monier Road Ltd on 27 March 2024. The occupants said they cannot sell or get mortgages on their homes because the building has fire defects and want the building’s landlord to remediate them.

Monier Road Ltd said the building should not be classified as higher risk and therefore not fall under the scope of the fire risk remediation rules.

On 3 July 2024, the judge ordered Monier Road Ltd to remedy the fire safety defects on Smoke House by 30 September 2025.

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