Statute or guidance? The BSA continues to vex.
Two recent decisions on the Building Safety Act 2022 (“BSA”) have shone a light on the continuing difficulties being experienced by the courts in interpreting its provisions, when viewed against the genesis of the Act and the government’s own guidance.
The first, known as the Smoke House [2024] decision, shows the difficulty in determining exactly how the height of a building is to be measured. 18 metres/7 storeys is the magic number for the purposes of the BSA, as it designates a Higher-Risk Building, and thus engages a raft of leaseholder protections and developer obligations. Supplemental 2023 Regulations to the BSA even go to the lengths of explaining how to measure buildings and how to treat rooftop machinery and plant when deciding if it constitutes a ‘storey’. The regulations only require rooftops which contain nothing but plant/machinery to be excluded from the calculation. Armed with this, the FtT in Smoke House (para 59-91) found that an open rooftop which contained both a roof garden and plant/machinery should be counted in the number of storeys. The problem? The government’s own guidance, published 21 June 2023, says:
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.
As the FtT pointed out, this is directly at odds with the statutory provisions, and also undermines the purpose of the BSA which is to consider residents’ safety in the event of a fire. A person might just as easily be in the rooftop garden when a fire breaks out, as a flat. Why, then, shouldn’t it constitute a storey? However, the FtT held that it did not have the jurisdiction to determine whether a building is, or is not, a Higher-Risk Building. Subsequent commentary from MHCLG has stood by the guidance. With buildings coming in an endless variety of designs, it may not be long before this issue crops up again.
The second decision, Nuernberg v Adderstone [2024] (full judgment awaited but see Falcon Chambers’ summary here), concerned the criteria to be met for a leaseholder to qualify for certain protections under the BSA, and specifically, how many properties they can own and still qualify. Section 119(2) of the BSA says:
“A lease is a “qualifying lease” if—
(a) it is a long lease of a single dwelling in a relevant building,
(b) the tenant under the lease is liable to pay a service charge,
(c) the lease was granted before 14 February 2022, and
(d) at the beginning of 14 February 2022 (“the qualifying time”)—
(i) the dwelling was a relevant tenant’s only or principal home,
(ii) a relevant tenant did not own any other dwelling in the United Kingdom, or
(iii) a relevant tenant owned no more than two dwellings in the United Kingdom apart from their interest under the lease.”
Read literally, and applying the usual rules of interpretation, this means a qualifying leaseholder can either own no more than 3 properties in England and Wales (but need not live in the Relevant Building in question) or can own more than 3 properties, but only the flat in which they live can have a qualifying lease. And the FtT found accordingly.
The problem? The FtT in the first instance Triathlon Homes [2024] case had reached a different conclusion, saying (at para 26) that the conditions are in effect cumulative – the leaseholder must live in the flat and own no more than 3 properties in total in order to have a qualifying lease. To be fair, the FtT in Triathlon was more focused on various other knotty BSA issues and this part of the judgment is arguably obiter, which might be just as well, since para 941 of the Explanatory Notes which accompany the BSA matches the conclusion in Nuernberg:
“The provision at subsection (2)(d) means that a leaseholder will qualify for the leaseholder protections for their properties if they own up to three properties in the United Kingdom in total. If more than three properties in total are owned, then the principal home qualifies for the protections, but the other properties do not.”
It is always a vexed question how much reliance a court can place on explanatory notes and government guidance when trying to interpret statute, and we may have to wait for further judgments to give us some definitive answers. In the meantime the FtT will have to continue to grapple with the complex drafting of the BSA, ever mindful of the tragic reason it was enacted in the first place. Where Parliament has so deliberately chosen to move the goalposts of the landlord/tenant relationship, it is understandable that the policy objectives behind the Act are carrying great weight with the courts.
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