Building Safety Hub
Supporting building and fire safety excellence in tall residential buildings in England
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A new alert from CROSS UK draws attention to the safety risks associated with preventing the operation of smoke vents, in particular Automatic Opening Vents (AOVs), by construction works on existing buildings.
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Today, the NAO have released their report on dangerous cladding. This report assesses whether MHCLG’s remediation portfolio in England is completing timely remediation of unsafe cladding at a reasonable cost to the taxpayer.
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The contradiction between current legislation and guidance on what constitutes a higher-risk building was highlighted by the First-tier Tribunal (FTT) decision in Smoke House & Curing House, 18 Remus Road, London E3 2NF (LON/00BG/HYI/2023/0024). In Smoke House, the FTT applied the HRB Regulations 2023, finding that a roof garden was a storey, despite it being an open rooftop which was not fully enclosed. The FTT noted that the guidance appeared to go beyond the wording of the legislation and was not a reliable interpretation of the law.
In response, the government has added a note to the guidance stating that it and the Building Safety Regulator are considering the view of the FTT in Smoke House but "until stated otherwise, the sector and regulatory bodies should continue to refer to existing government guidance". This uncertainty leaves practitioners in a difficult position when advising on buildings where the inclusion of a roof garden may be the deciding factor in whether the building is an HRB.
The definitions of HRB's in the BSA 2022 are supplemented by the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 (SI 2023/275) (HRB Regulations 2023), which provide that a storey does not count towards the seven storeys if the storey is a rooftop plant or machinery area or consists exclusively of roof-top machinery or plant room (regulation 6, HRB Regulations 2023).
The government's guidance on what constitutes a higher-risk building is set out in three separate documents, housed on a collection page (see Guidance on the criteria for being a higher-risk building). The guidance states (emphasis added):
"A storey must be fully enclosed to be considered a storey. The roof of a building should not be counted as a storey. Open rooftops such as rooftop gardens are not considered storeys and should not be counted as such when determining the number of storeys or measuring the height."
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The Construction Leadership Council (CLC) is championing and supporting the delivery of safe and high-quality buildings for those who live and work in them.
The Building Safety workstream of the Construction Leadership Council have today (27 August 2024) published guidance on the golden thread of information requirements for higher-risk buildings. This guidance will support dutyholders and accountable persons to deliver a golden thread for their building.
The guidance sets out the golden thread information that dutyholders and accountable persons will need to generate, keep, maintain and handover during design, through construction, handover and completion of the building and into occupation.
The full Golden Thread Guidance is available here. A Summary of the guidance is also available, and can be downloaded here.
As the new regime develops, this guidance will almost certainly need to develop with it. The CLC would like to invite constructive feedback on this guidance to support this process.