Building Safety Act : ‘Storey’ Definition

The definition of ‘storey’ under the Building Safety Act has been clarified in a landmark First-Tier Tribunal decision regarding Smoke House and Curing House in London.

This ruling has significant implications for how buildings are classified and regulated under safety laws, particularly concerning their height and potential fire risks.

Background: The Smoke House and Curing House Case

The case arose from fire safety concerns in Smoke House and Curing House, residential buildings with combustible materials, such as timber cladding and composite decking in courtyards and walkways. Leaseholders sought a remediation order under Section 123 of the Building Safety Act 2022, aiming to address these risks.

Central to the case was whether the buildings qualified as "higher-risk buildings" under the Act, which applies to structures :

At least 18 meters tall, or

Containing at least seven storeys,

With two or more residential units.

Building Safety Act : 'Storey' Definition - Why This Is Critical

The classification of a building as higher-risk directly affects the scope of safety regulations. Under the Building Safety Act 2022 and the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 :

Exclusions : Storeys exclusively housing machinery or plant are not counted.

Inclusions : Rooftop gardens are included as storeys if they coexist with plant or machinery spaces.

However, guidance from the Department for Levelling Up, Housing, and Communities (DLUHC) offers a conflicting interpretation, stating that a storey must be fully enclosed to count. This excludes open spaces, such as rooftop gardens, from the storey count.

In the case of Smoke House and Curing House, this discrepancy caused ambiguity. The buildings featured rooftop gardens alongside plant & machinery. If these rooftop spaces were considered storeys, the buildings would meet the higher-risk threshold, triggering stricter oversight.

The government guidance has since been updated to state that The Ministry of Housing, Communities and Local Government and the Building Safety Regulator are currently considering the views expressed by the Tribunal in this case and that until stated otherwise, the sector and regulatory bodies should continue to refer to existing guidance.

Tribunal’s Decision on ‘Storey’ and Higher-Risk Designation

The tribunal ruled that the buildings contained seven storeys, making them higher-risk buildings under the Act.

Their reasoning included:

Statutory Regulations vs. Guidance : The tribunal prioritized statutory regulations over advisory guidance, confirming that rooftop gardens could count as storeys when combined with plant machinery.

Fire Safety Concerns : Rooftop gardens posed heightened fire risks due to their combustible materials and potential occupancy.

Stricter Oversight : Higher-risk designation required the buildings to :

Appoint a Principal Accountable Person (PAP).

Comply with enhanced fire safety and risk management measures.

Implications of the Smoke House Decision

This decision on ‘storey’ under the Building Safety Act sets a vital precedent for building safety and compliance.

Key implications include:

Clarity in Definitions : The ruling highlights the importance of relying on statutory definitions rather than inconsistent guidance. Precise definitions ensure uniformity in applying safety regulations.

Fire Safety Planning : By including open rooftop spaces in the storey count, the tribunal emphasized their contribution to fire risks. Developers and regulators must now consider such areas in fire safety strategies.

Increased Accountability : Buildings classified as higher-risk are subject to regular inspections by the Building Safety Regulator. They also require comprehensive safety case reports to demonstrate effective risk management.

Future Precedents : This decision impacts how storey definitions influence the height and classification of buildings, guiding developers, leaseholders, and safety officials.

Moving Forward: The Role of ‘Storey’ Under the Building Safety Act

The Smoke House decision underscores the importance of clearly defining ‘storey’ under the Building Safety Act. This clarity ensures that all potentially risky areas, including rooftop spaces, are appropriately regulated to protect residents.

As safety legislation evolves, this case serves as a reminder of the need for precision, accountability, and proactive risk assessment in safeguarding residential communities. The tribunal’s decision not only resolves ambiguities but also strengthens the framework for safer building practices and compliance under the Building Safety Act.

Building Safety Act - How we can help

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This service includes the procurement of a specialist design team for the full remediation of the external façade if required. The advice we provide is backed by specific professional indemnity insurance to undertake this work.

To commission an FRAEW survey or Fire Risk Assessment (FRA) please call 020 4534 3130.

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