The recent decision by the First-Tier Tribunal (FTT) in Blomfield and Others -v- Monier Road Limited (Smoke House and Curing House) may result in buildings which may have been previously excluded from the “higher risk building” regime being considered as higher-risk.
The Blomfield and Others -v- Monier Road Limited matter centred on the treatment of government guidance regarding the higher-risk building criteria under the Building Safety Act 2022 (BSA) and Higher Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2003 (Regulations). Under Section 65 of the BSA, a “higher-risk building” is defined as“…a building in England that—
On 21 June 2023, the Government issued guidance as to what section 65 and the Regulations sought to achieve in practice. It provides a storey that must be fully enclosed to be considered a storey and open rooftops such as rooftop gardens should not be considered storeys and should not be counted as such when determining the number of storeys or measuring height.
The claim
The leaseholder claimants sought a remediation order against the landlord for the removal of elements of the building which they considered to be a fire safety risk, stating that the building should be counted as a higher-risk building. The landlord argued that the building should not be counted as a higher-risk building based on the government guidance issued on 21 June 2023.
FTT’s decision
The FTT determined that the building should be classed as higher risk for the purposes of the BSA: “In our view, it should be registered with the Building Safety Regulator and have A Principal Accountable person appointed. This is not for the Tribunal to specify under the terms of a Remediation Order, but it is considered essential that this building (both Smoke House and Curing House) is managed under the Higher-risk Building regime. The remedial works should be carried out with an application to the Building Safety Regulator as Local Authorities and Building Control Approvers (previously known as Approved Inspectors) are not permitted to work on Higher-risk buildings.”
The FTT’s interpretation of the statutory provisions was based on the aims of the BSA as a whole, which is that buildings should be safe. Irrespective of whether or not someone at the top of a building is in a roof garden, an assessment needs to be made about how quickly they will be able to get out compared to the speed at which the fire could spread.
The landlord was ordered to remedy several components of the building “to not permit the spread of fire” and replace combustible materials with “appropriate non-combustible alternatives” by the end of September 2025.
Government response
In response to this decision, The Ministry of Housing, Communities and Local Government and the Building Safety Regulators 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.
Comment
The decision may cause concern to those who have previously relied on the Government guidance issued in June 2003. While not binding, the decision indicates how the FTT may look at future cases which could result in buildings which may have been previously excluded from the regime being considered as higher risk.
It remains to be seen whether the government will implement regulations to clarify the position in the light of this decision.
