# The London Overground (Barking Riverside Extension) Order 2017, Article 40: Defence to proceedings in respect of statutory nuisance


(1) Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990 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 is to be imposed, under section 82(2) of that Act if the defendant shows—
(a) that the nuisance relates to premises used by TfL for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to the authorised works and that the nuisance is attributable to the carrying out of the authorised works which are being carried out 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; or
(b) that the nuisance is a consequence of the operation of the authorised works 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 TfL for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.
(3) The provisions of this article do not affect the application to the authorised works of section 122 of the Railways Act 1993 (statutory authority as a defence to actions in nuisance, etc.) or any rule of common law having similar effect.

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Source: https://www.legislation.gov.uk/uksi/2017/830/article/40 (the official version)
Page: https://openlegislation.uk/london-overground-barking-riverside-extension-order-2017/article-40
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.