New guidance on roof gardens under the Building Safety Act
The Ministry of Housing, Communities and Local Government (MHCLG) has issued a clarification to guidance on determining if a building is a higher-risk building under the Building Safety Act 2022 and Higher-Risk Buildings Regulations 2023. The update confirms that a roof garden does not count as a storey.
What triggered the clarification?
A tribunal had previously ruled that a building with a roof garden should be classified as 7 storeys high, bringing it within scope of the higher-risk regime. This led to stricter compliance obligations for the building’s owners.
Since then, MHCLG has consulted with the Building Safety Regulator and now intends to amend the regulations to make clear that roof gardens should not be counted as storeys.
Definition of a higher-risk building
A higher-risk building must contain at least two residential units and be either:
- At least 18 metres high; or
- Seven or more storeys
However, certain types of buildings are excluded from this definition, including:
- Care homes
- Hospitals
- Hotels
- Military accommodation
- Secure residential institutions
What extra duties apply to higher-risk buildings?
Where a building is deemed higher-risk during the occupation phase, the following requirements apply:
- Registration with the Building Safety Regulator
- Appointment of an accountable person (or principal accountable person)
- Creation and maintenance of a safety case report
- Submission of a Building Assessment Certificate when requested
- Resident engagement strategy and safety communications
- Complaints procedure for residents to report safety concerns
- Mandatory reporting of serious safety occurrences
What should you do next?
If you’re managing a building that may be classed as higher-risk, especially if it has a roof garden, ensure your classification is up to date and compliant with the latest guidance. The MHCLG update provides clarity — but interpretation should be handled carefully, particularly in live planning or construction projects.
Need help with classification or compliance?
We can assist with risk assessment, classification reviews and dutyholder guidance. Speak to our expert team for tailored support.