PART 6MISCELLANEOUS AND GENERAL
Defence to proceedings in respect of statutory nuisance30
1
Where proceedings are brought under section 82(1) of the Environmental Protection Act 199041 (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within section 79(1)(g) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance), no order may be made, and no fine may be imposed, under section 82(2) of that Act42 if the defendant shows that the nuisance—
a
relates to premises used by the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development and 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) of the Control of Pollution Act 197443 or a consent given under section 61 (prior consent for work on construction site) or section 65 (noise exceeding registered level) of that Act; or
b
is a consequence of the use, construction or maintenance of the authorised development and 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 and section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded) of that Act do 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.