PART 5 MISCELLANEOUS

18 Defence to proceedings in respect of statutory nuisance
1 Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990) (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraphs (a), (c), (d), (e), (fa), (fb), (g) or (ga) 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 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 site), or a consent given under section 61 (prior consent for work on construction site) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974); or
1974 c.40. Sections 61(9) and 65(8) were amended by section 162 of, and paragraph 15 of Schedule 3 to, the Environmental Protection Act 1990, c.25. There are other amendments to the 1974 Act which are not relevant to this Order.
(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 accordance with a scheme of monitoring and control agreed with the county planning authority and Environment Agency as described in the requirements; or
(ii) is a consequence of the use of the authorised project and that it cannot reasonably be avoided.
1990 c.43. There are amendments to this Act which are not relevant to this Order.
2 Section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990) of the Control of Pollution Act 1974 and section 65(8) of that Act (corresponding provision in relation to consent for registered noise level to be exceeded), is not to 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 project.