PART 3OPERATIONS
Defence to proceedings in respect of statutory nuisance9
1
Where proceedings are brought under section 82(1) of the Environmental Protection Act 199010 (summary proceedings by persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act no order may be made, and no fine may 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 sites), or a consent given under section 61 (prior consent for work on construction sites) of the Control of Pollution Act 197411; 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 compliance with a noise management scheme approved by the relevant planning authority under requirement 19 (control of noise during operation); or
ii
is a consequence of the use of the authorised development 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 the undertaker for the purposes of or in connection with the construction or maintenance of the authorised development.