In July 2024, the First-tier Tribunal (FTT) handed down a decision relating to remediation work at Smoke House and Curing House in east London, a residential property consisting of 45 flats and commercial space.

As part of the ruling, the FTT raised the issue as to whether the building in question would fall under the definition of a higher-risk building due to it having seven storeys. The actual number of storeys present on the building came down to whether a roof top garden should be considered a storey.

Speaking at the time of that decision, Judge Martynski said that the guidance produced at the time by government “appears to not only add to the statutory provisions, but also to contradict them”, leading to confusion over whether the roof garden should be considered a storey for the purposes of the Building Safety Act.

In its July decision, the FTT agreed that Smoke House and Curing House should be classed as higher-risk “for the purposes of Part 4 of the Building Safety Act” but raised issues around how a storey is defined, however the government have since clarified its position in relation to roof gardens being considered a storey.

In an initial statement issued on 18 October 2024, the Ministry of Housing, Communities, and Local Government (MHCLG) confirmed it was considering views on the matter and recognised that “the views expressed by the Tribunal may have created some uncertainty within the sector”. At the time it advised sector and regulatory bodies to continue to refer to existing government guidance whilst this work was carried out.

The most recent statement issued by MCHLG on 28 May 2025 said: “The department recognises the need to provide clarity within the legislation. We 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 under section 120D of the Building Act 1984 and section 65 of the Building Safety Act 2022.

 

“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.”