Smoke House & Curing House, 18 Remus Road, London E3 2NF (LON/00BG/HYI/2023/0024)
18 December 2024
Technically, this was an application for a remediation order under Part 5, section 123 of the Building Safety Act 2022.
The FTT granted the remediation order - but the rather more radical element of its decision was its determination that the building was a “higher risk building” as defined in Part 4, sections 117 and 118 of the 2022 Act.
The key criterion for establishing whether a building is “higher risk” is its height: it must be either at least 18m or 7 storeys high.
The Act says that regulations may provide a definition of “storey”.
But the only definition is in guidance: regulations do not define it.
The Government’s guidance, published online on 21 June 2023, said this:
A storey must be fully enclosed to be considered a storey. The roof of a building should not be counted as a storey. Open rooftops such as rooftop gardens are not considered storeys and should not be counted as such when determining the number of storeys or measuring the height.
The FTT’s decision
Smoke House and Curing House had a roof garden.
The FTT was not bound by the Government’s guidance, and declined to apply it:
The guidance has no references or indication of relevant sources.
In addition, it was published on the Government’s building safety web pages, which were updated, changed and expanded regularly, and for that reason:
These web-pages therefore do not constitute a reliable method of interpretation of law.
One of the concerns behind the definition of ‘storey’ for fire safety considerations must be where people might be located the event of a fire.
People “might be located in flats or enclosed storeys, but where there is a roof garden, persons may well be located there”.
No power to declare the higher risk status of the buildings
The Applicants requested a declaration that the building was higher-risk under Part 4 of the Building Safety Act 2022.
The FTT had no jurisdiction to make that declaration.
However…
The FTT decided that, measured and assessed according to the Building Safety Act 2022 and secondary legislative requirements, the buildings had:
7 storeys, and
Were over 18m in height.
Therefore they were higher-risk buildings for the purposes of Part 4 of the Building Safety Act:
They should be registered with the Building Safety Regulator and
They should have a Principal Accountable person appointed.
For the purposes of the remediation order, 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.