Ongoing Advancements: Latest Legal Shifts in the British Construction Sector | October 2024
Clarifying the Definition of a Storey in Higher-Risk Buildings
In a recent development, the Construction Leadership Council (CLC) has published new guidance on the "golden thread of information" for higher-risk buildings (HRBs), shedding light on the ongoing debate about the classification of HRBs.
The new guidance, divided into three main parts - legal basis, design and construction, and golden thread for occupied buildings - aims to provide clarity on the subject. According to the CLC, the golden thread includes information gathered over the building lifecycle and information management systems.
The definition of a "storey" in HRBs aligns with the one used in the Building Safety Act 2022 and related regulations. An HRB is considered a building with seven or more storeys or at least 18 metres in height, with two or more dwellings or a similar relevant use. This standard has been reinforced under the new enhanced building safety regime in England, effective from April 2024, which regulates all higher-risk buildings through the Building Safety Regulator (BSR).
However, the legal interpretation of a "storey" has been under scrutiny, with the "Smoke House" case bringing significant legal scrutiny on the definition of a "storey" as it applies to HRBs. While the exact details of the ruling are not publicly available, the case highlighted the need for clarity and consistency in building safety definitions and requirements.
Despite the "Smoke House" case ruling that a roof garden counts as a storey, contradicting the existing government guidance, the government and regulatory bodies have maintained the standard that a storey is a level of a building typically counted for purposes of imposing building safety regulations, particularly in the context of fire safety and structural risk management for buildings seven storeys or taller.
The government and the BSR have responded by issuing enhanced statutory guidance and strengthening the building safety regime to ensure consistent application of these definitions. This includes extending safety controls, material bans, and evacuation guidance specifically for buildings meeting or exceeding the height/storey thresholds.
The new CLC guidance is particularly relevant to clients, developers, principal designers, principal contractors, and the professional team responsible for designing and building a new HRB. Until further notice, practitioners should continue to refer to the existing government guidance regarding storey counting in HRBs.
It is important to note that the Building Safety Act 2022 has implemented the golden thread concept, aiming to ensure transparency and accountability in the construction and management of HRBs. The Act also requires the establishment of the Building Safety Regulator and the creation of a Building Safety Regulation Advisory Committee to oversee the implementation of the golden thread and other safety measures.
In addition to the Smoke House case, the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 state that a roof-top is not classed as a storey if it is a roof-top machinery or roof-top plant area. The government guidance also states that a storey must be fully enclosed, and open rooftops like roof gardens should not be counted as a storey.
The Grenfell Inquiry's final report, published on 4th September 2024, identified key failures in ensuring safety for the building and residents. The report offers recommendations for the government to consider, focusing on improving building safety regulations, enhancing the role of the Building Safety Regulator, and implementing the golden thread concept effectively.
In summary, the legal interpretation of a "storey" in HRBs aligns with the definition used in the Building Safety Act 2022 and related regulations. The "Smoke House" case prompted clarification but did not fundamentally change the seven-storey/18-metre threshold; instead, it reinforced the need for clear regulatory definitions and enforcement. The government and the Building Safety Regulator have responded by issuing enhanced statutory guidance and strengthening the building safety regime to ensure consistent application of these definitions, emphasizing fire safety, material restrictions, and resident protection measures for HRBs.
In light of the new CLC guidance and the ongoing legal debate surrounding the definition of a "storey" in higher-risk buildings (HRBs), individuals involved in financing and investing in real-estate development must be aware of the implications on building classifications and safety regulations. The height or number of storeys of an HRB significantly influences the potential risk and associated financial obligations, as it determines the scope of safety measures and regulatory compliance required.
Understanding the distinction between a storey and non-storey areas, such as roof gardens or mechanical/plant areas, is crucial for investors and developers, as it affects the building's classification and potential value. Seasoned professionals in the real-estate industry can capitalize on this knowledge by strategically targeting opportunities in HRBs with favorable regulatory definitions, ensuring long-term financial success and adherence to safety standards.
