Part 3: Building Act 1984 Building control authorities and building regulations Section 31: Higher risk buildings etc Effect
The new regulatory regime will regulate "higher-risk buildings". This section inserts sections 120D to 120I into the Building Act 1984. Section 120D defines the "higher-risk buildings", which will be regulated during the design, construction and refurbishments phases of a building’s lifecycle by the new regime in England, as at least 18 metres in height or at least 7 storeys and of a description specified in regulations.
	Section 120D gives the Secretary of State the powers, by regulations to define which descriptions of buildings are "higher-risk buildings" (subsection (2)(b)) and which descriptions of buildings are excluded from the definition of "higher-risk building" (powers used in the way described by (4)(c)). Regulations made under these powers are subject to the affirmative resolution procedure, i.e. they must be laid in draft, debated and approved in both Houses of Parliament before they can be made.
	Section 120D, at subsection (3), also gives the Secretary of State the power, by regulations, to supplement the definition for example, by defining "building" or "storey" or describing how the height of a building should be measured. Subsection (5) provides that the definition of "building" in regulations may include other structures, erections or movable objects. The ability to have a broad definition aligns with section 121 of the Building Act 1984. Regulations made under this power are subject to the negative resolution procedure.
	Section 120D gives the Secretary of State the power to amend section 120D apart from subsections (1), (3) and (6). This power could be used, for example, to amend the height criteria for the definition of "higher-risk building". Regulations made under this power are subject to the affirmative resolution procedure, i.e. they must be laid in draft, debated and approved in both Houses of Parliament, before they can be made.
	When making regulations to amend the definition of "higher-risk building", this can be done by reference to a building’s size, design, use, purpose or other characteristic (section 120A of the Building Act 1984, inserted by paragraph 77 of Schedule 5 to this Act).
	Section 120E stipulates that the Secretary of State must consult the Building Safety Regulator and any other appropriate persons before making regulations under section 120D. The Secretary of State does not need to consult the Building Safety Regulator if they have received a recommendation or requested advice from the Regulator.
	Section 120F further stipulates that when the Secretary of State proposes to make regulations which would result in a description of building being added to the definition of "higher-risk building", and therefore subject to the new design and construction regulatory regime for higher-risk buildings, they must have received a recommendation from the Regulator to that effect, or asked the regulator for advice, and they must undertake and publish a cost benefit analysis. If the costs or benefits cannot be reasonably or practicably estimated, then the Secretary of State must provide an explanation of this.
	Section 120H sets out what the Regulator must do if the Secretary of State asks it for advice about the definition of "higher-risk building". The Building Safety Regulator is obliged to provide such advice on request.
	If the Building Safety Regulator is asked to provide advice on whether a new description of building should be added to the definition of "higher-risk building", it must consider whether the conditions at subsection (2) (a) - (c) of this section are met. The conditions are: the Building Safety Regulator must be of the view that building safety risks in the type of building in question are higher than in buildings in general, that if the prescribed building safety risks arose in the type of building in question it could cause a major incident (serious injury or death to a significant number of people) and that the Regulator considers it appropriate for the regulatory regime to apply.
	If the Building Safety Regulator considers the conditions are met, it must recommend to the Secretary of State that the new description of building is added to the definition of "higher-risk building" and provide a statement of the issues it considered alongside the recommendation.
	If the Building Safety Regulator considered the conditions are not met, they must provide advice that the new description of building should not be added to the definition of "higher-risk building" and provide a statement of the issues it considered.
	Section 120H also sets out that the Building Safety Regulator must provide advice as to whether a description of building should be removed from the definition of "higher-risk building", if the Secretary of State requests it.
	Section 120G provides that the Building Safety Regulator must recommend to the Secretary of State that a particular description of building should be subject to regulation under the regime if the conditions at subsection (1) (a) - (c) of this section are met. These are the same conditions as specified in section 120H. In making such a recommendation under section 120G, the Building Safety Regulator must provide the Secretary of State with a statement of the issues considered.
	Under section 120G (4), the Building Safety Regulator may also recommend the removal of a description of higher-risk building from the regulatory regime.
	If the Secretary of State chooses not to follow a recommendation of the Building Safety Regulator, then sections 120G and 120H specify that they must publish a document which sets out the regulator’s recommendation, the Secretary of State’s decision not to follow the recommendation, and the reasons for that decision.