PART 6MISCELLANEOUS AND GENERAL
Defence to proceedings in respect of statutory nuisance40
1
Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 199042 in relation to a nuisance falling within paragraph (g) of section 79(1)43 of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order is to be made, and no fine is to be imposed, under section 82(2) of that Act if the defendant shows—
a
that the nuisance relates to premises used by TfL for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to the authorised works and that the nuisance is attributable to the carrying out of the authorised works which are being carried out in accordance with a notice served under section 60 (control of noise on construction sites), or a consent given under section 6144 (prior consent for work on construction sites), of the Control of Pollution Act 197445; or
b
that the nuisance is a consequence of the operation of the authorised works and that it cannot reasonably be avoided.
2
Section 61(9) of the Control of Pollution Act 1974 does not apply where the consent relates to the use of premises by TfL for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.
3
The provisions of this article do not affect the application to the authorised works of section 122 of the Railways Act 199346 (statutory authority as a defence to actions in nuisance, etc.) or any rule of common law having similar effect.