Article 49 Defence to proceedings in respect of statutory nuisanceI1

England and Wales

(1)

Where proceedings are brought under section 82(1)^f1 (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990 in relation to a nuisance falling within paragraph (g) or (ga) of section 79(1)^f2 (statutory nuisances and inspections therefor.) of that Act no order is to be made, and no fine may be imposed, under section 82(2)^f3 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 1974^f4; 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 is a consequence of the use of the authorised development 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 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.

Annotations

Commencement

I1: Art. 49 in force at 22.10.2025, see art. 1

Footnotes

f1: 1990 c. 43. There are amendments to this section 82(1) which are not relevant to this Order.
f2: Section 79(1) was amended by section 2(1) and (2) of the Noise and Statutory Nuisance Act 1993 (c. 40); sections 107 and 120(1) of, and paragraph 2(1) of Schedule 17 and paragraph 89 of Schedule 22 to, the Environment Act 1995 (c. 25); and section 102(1) and (2) of the Clean Neighbourhoods and Environment Act 2005 (c. 16).
f3: Section 82(2) was amended by section 5(2) of the Noise and Statutory Nuisance Act 1993.
f4: 1974 c. 40. Section 61 was amended by section 133(2) of, and Schedule 7 to, the Building Act 1984 (c. 55); section 162(1) of, and paragraph 15(1) and (3) of Schedule 15 to, the Environmental Protection Act 1990; and section 120(3) of, and Schedule 24 to, the Environment Act 1995. There are other amendments to section 61 that are not relevant to this Order.