The legal status of roof gardens became significant when the Building Safety Act 2022 stipulated that ‘higher-risk buildings’ had to be approved by the new Building Safety Regulator (BSR) – and getting approval is proving tricky for many.
Higher-risk buildings are defined as buildings with at least two residential units, care homes, and hospitals that are at least 18 metres in height or have at least seven storeys.
What about a six-storey building with a roof garden? The Ministry of Housing, Communities & Local Government (MHCLG) wants to remove any ambiguity.
It said: “Following the initial statement dated 18th October 2024, the Ministry of Housing, Communities & Local Government has carefully considered the views expressed by the Tribunal in the First Tier Tribunal decision dated 3rd July 2024.
“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.”
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