PART 7MISCELLANEOUS AND GENERAL

Defence to proceedings in respect of statutory nuisance29.

(1)

Where proceedings are brought under section 82(1) of the Environmental Protection Act 199022 (summary proceedings by person 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 is to 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 Network Rail 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 section 65 (noise exceeding registered level), of the Control of Pollution Act 197423; 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 Network Rail 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 mitigation of noise approved by the relevant planning authority as described in requirement 10 (noise mitigation Railway Cottages) in Part 2 (requirements) of Schedule 1 (authorised development and requirements); or

(ii)

is a consequence of the use of the authorised project and that it cannot reasonably be avoided.

(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), does not apply where the consent relates to the use of premises by Network Rail for the purposes of or in connection with the construction or maintenance of the authorised project.