PART 2Principal Powers

Defence to proceedings in respect of statutory nuisance 8.

(1)

Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 199022 in relation to a nuisance falling within paragraphs (d), (fb), (g) and (ga) of section 79(1) (statutory nuisances and inspections therefor) of that Act no order is to 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 197423;

(b)

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

(c)

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

(2)

Section 61(9) (consent for work on construction site) of the Control of Pollution Act 197424 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.