Defence to proceedings in respect of statutory nuisance8.

(1)

Where proceedings are brought under section 82(1) of the Environmental Protection Act 19907 (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within section 79(1) (c), (d), (e), (fb), (g), (ga) or (h) of that Act (statutory nuisances and inspections therefor), no order may be made, and no fine may be imposed, under section 82(2) of that Act 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 sites), or a consent given under section 61 (prior consent for work on construction sites), of the Control of Pollution Act 19748;

(b)

is a consequence of the construction or maintenance of the authorised development and cannot reasonably be avoided;

(c)

relates to premises used by the undertaker for the purposes of or in connection with the use of the authorised development and is attributable to the authorised development which being used in accordance with the scheme for noise management approved by the relevant planning authority under Requirement 13; or

(d)

is a consequence of the use of the authorised development and cannot reasonably be avoided.

(2)

Section 61(9) of the Control of Pollution Act 1974 does not apply where a consent given under that section 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.