In a first-tier tribunal (FTT) on building safety remediation, a judge has questioned the criteria for ‘higher-risk buildings’, ruling that roof gardens can be counted as an additional storey

Earlier in July 2024, a residential property tribunal decision was made regarding remediation work at Smoke House and Curing House in east London, consisting of 45 flats. As reported by Construction News, the premises features commercial space on the ground floor, residential homes across five storeys, three different types of balconies containing varying levels of timber wall coverings and composite board decking, and a roof garden on part of the roof.

Leaseholders at the building, led by Nicholas Blomfield, brought a case against landlord Monier Road Limited regarding ongoing fire safety issues that prevented them from selling or mortgaging their properties.

The landlord had carried out a fire risk assessment and a fire risk appraisal of the external wall (FRAEW), and prior to the tribunal hearing, Monier Road Limited put together a draft remediation order that included the following:

  • The replacement of the timber cladding (and material and fixings behind that cladding) to the courtyard facing elevations to be replaced with a non-combustible material
  • The installation of cavity fire barriers
  • The production of a further FRAEW report at the conclusion of the works, the terms of which would not prevent a satisfactory FORM EWS1 from being issued.

It is understood that some fire safety work, relating to the risers and compartmentation, had already been carried out.

At a hearing in March 2024, the tribunal raised concerns over some parts of the fire risk assessment and FRAEW reports carried out by the landlord, including whether the building should be considered a ‘higher-risk building’ as it was more than 18 metres in height, which “had not been acknowledged in the reports”.

The tribunal also noted that the recommended remedial works “did not include dealing with substantial amounts of timber on the internal courtyard walkways, on the balconies and on the roof terrace (the risks of these areas may be exacerbated by the fact that the internal courtyard would be difficult to access in an emergency and also contained substantial combustible wooden planters and planting)”.

Following an inspection of the building in June, the tribunal deemed a remediation order should be made as there was a “clear and substantial safety risk as the building stands which needs to be remediated as a matter of urgency”.

Regarding the question of whether the building could be categorised as ‘higher risk’, the tribunal stated: “Unfortunately, this is not a straightforward question even after a consideration of the relevant law and guidance.”

The tribunal considered the definition of ‘relevant building’ under the Building Regulations and Building Safety Act 2022. Another key issue was the government’s definition of ‘storey’, and whether a roof garden could be categorised as such, which would make the premises seven storeys and thus higher risk. With secondary legislation, Approved Document B, and various government guidance, most of the “advisory web pages” have “caveats on use and interpretation”, the tribunal said. Judge Martynski added the guidance “appears to not only add to the statutory provisions, but also to contradict them”.

“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,” the tribunal added.

“These web pages therefore do not constitute a reliable method of interpretation of law.”

The tribunal agreed that Smoke House and Curing House should be classed as higher-risk “for the purposes of Part 4 of the Building Safety Act”.

“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) are 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.”

Monier Road Limited was ordered to remedy several components of the building “to not permit the spread of fire”, such as the balconies, including the walls and floor decking and construction; external walls, including the courtyard and street elevations; bin stores; courtyard walkways; courtyard floor area – including planters, flooring and other combustible materials; and roof terrace, including flooring and planters.

The required works involve the removal of combustible materials, to be replaced with “appropriate non-combustible alternatives”. Works are to be done by the end of September 2025.

Ellie Fletcher, a solicitor for Devonshires, told Construction News: “The FTT has taken the stance that the exclusions are clearly defined and should be narrowly interpreted. This potentially pulls a number of buildings previously excluded from the higher-risk building regime within scope.

“It also pulls into question the reliance people have previously placed on government guidance. The guidance is not a reliable source of law, and no guidance circumvents the need to understand the legislation in detail.”

You can view the full tribunal decision here.