PART 3Operations
Defence to proceedings in respect of statutory nuisance8
1
Where proceedings are brought under section 82(1) of the Environmental Protection Act 199015 (summary proceedings by persons aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (statutory nuisances and inspections therefor no order is to be made, and no fine is to be imposed, under section 82(2) of that Act if—
a
the defendant shows that the nuisance—
i
relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) of the Control of Pollution Act 197416; or
ii
is a consequence of the construction or maintenance of the authorised development and that it cannot reasonably be avoided; or
b
the defendant shows that the nuisance—
i
relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and that the nuisance is attributable to the use of the authorised development which is being used in accordance with a scheme of monitoring of noise agreed with the relevant planning authority as described in requirement 22 (control of noise - operation); or
ii
is a consequence of the use of the authorised development and that it cannot reasonably be avoided.
2
Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.