PART 2Principal Powers

Defence to proceedings in respect of statutory nuisance8.

(1)

Where proceedings are brought under section 82(1) of the Environmental Protection Act 199032 (summary proceedings by persons aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) 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 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 project and that the nuisance is attributable to the carrying out of the authorised project 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 197433; or

(ii)

is a consequence of the construction or maintenance of the authorised project 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 project and that the nuisance is attributable to the use of the authorised project which is being used in compliance with requirement 27 (control of noise during operational phase and during maintenance); or

(ii)

is a consequence of the use of the authorised project 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 purposes of or in connection with the construction or maintenance of the authorised project.