Current guidelines on roof gardens should continue to be followed despite a tribunal ruling indicating otherwise, the government has said.
The Ministry of Housing, Communities and Local Government (MHCLG) issued a note on Friday (19 October) stating that it is still considering a recent judgement on the issue.
It moved to clarify the situation after a First Tier Tribunal ruling, reported by Construction News earlier this month, that contradicted government advice.
The case involved a leaseholder of Smoke House and Curing House in Hackney Wick, east London, who was seeking wider remediation than was offered by the property’s owner.
He wanted the landlord to remove cladding and combustible material from an internal courtyard, balconies and roof terrace.
An issue discussed in the case was whether the building should be classed as a higher-risk building (HRB) under the terms of the Building Safety Act, bringing it into the scope of stricter safety standards.
The act defines an HRB as a building with at least two residential units that is taller than 18 metres or has at least seven storeys. Smoke House and Curing House has ground-floor commercial space, five residential storeys and roof gardens.
Judge Mark Martynski ruled the build is an HRB, and criticised contradictory secondary legislation and guidance on what counts as a storey.
Secondary legislation published in 2023 set out that a floor containing only rooftop plant or machinery does not count as a storey.
Martynski said this implied that a usable roof garden should count as a storey.
Subsequent government guidance published in June 2023 states that open rooftops such as rooftop gardens should not be counted when determining the number of storeys.
Martynski criticised the “evolution, amendment, addition to and in some cases withdrawal” of government guidance, which he said results in a “continuously changing resource”.
He said: “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 [sic] certain areas.”
MHCLG’s note said it is “currently considering the views expressed by the tribunal in the recent First Tier Tribunal decision”.
It added: “It is important to note the tribunal itself acknowledged it was not within its jurisdiction to formally determine whether the building being considered was a higher-risk building. Until stated otherwise, the sector and regulatory bodies should continue to refer to existing government guidance.”
Hassan Dervish, director of housing law at Duncan Lewis Solicitors, said the tribunal ruling was significant, but the issue may return to the courts.
“This ruling sets a significant precedent in determining how rooftop structures like gardens contribute to the overall risk profile of high-rise buildings. In classifying them as an additional storey, the tribunal has effectively expanded the criteria for what constitutes a ‘higher-risk’ building,” he said.
“This could result in an extra cost burden for developers and building managers who have hitherto discounted rooftop structures when determining which of their portfolio could be ‘higher-risk’. However, with councils likely to appeal, it is unlikely that this ruling will result in any enforcement until a final decision is made.”
