Article 35 Defence to proceedings in respect of statutory nuisanceI1

England, Wales and Scotland

(1)

Where proceedings are brought under section 82(1) (summary proceedings by persons aggrieved by statutory nuisances) of the Environmental Protection Act 1990 M1 in relation to a nuisance falling within paragraph (g) (noise emitted from premises so as to be prejudicial to health or a nuisance) of section 79(1) 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 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 M2; or

(b)

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

(c)

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 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 development.

Annotations

Marginal citations

M1: 1990 c.43. There are amendments not relevant to this Order.
M2: 1974 c.40. Section 61 was amended by section 162 of and paragraph 15 of Schedule 15 to the Environmental Protection Act 1990 (c.43). There are other amendments not relevant to this Order.

Commencement

I1: Art. 35 in force at 3.4.2019, see art. 1