Article 45 Defence to proceedings in respect of statutory nuisanceI1

England and Wales As made

(1)

Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990^f1 (summary proceedings by F1persons aggrieved by statutory nuisances) in relation to a nuisance falling within paragraphs (g) and (ga) of section 79(1) of that Act no order must be made, and no fine must 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 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 F2construction sites) or a consent given under section 61 (prior consent for work on construction sites) of the Control of Pollution Act 1974^f2; or

(ii)

relates to premises used by the undertaker for the purposes of or in connection with the construction of the authorised development and that the nuisance is attributable to the carrying out of the authorised development in accordance with the controls and measures relating to noise as described in the F3relevant construction environmental management plan approved pursuant to requirement 4; or

(iii)

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

(iv)

is a consequence of complying with a requirement of this Order 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)

For the purposes of paragraph (1) above in relation to the construction of the authorised development only, compliance with the controls and measures relating to noise described in the F4relevant construction environmental management plan approved pursuant to requirement 4 will be sufficient, but not necessary, to show that an alleged nuisance could not reasonably be avoided.

(3)

Where a relevant planning authority is acting in accordance with section 60(4) and section 61(4) of the Control of Pollution Act 1974 in relation to the construction of the authorised development then the local authority must also have regard to the controls and measures relating to noise referred to in the F5relevant construction environmental management plan approved pursuant to requirement 4.

(4)

Section 61(9) 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.

(5)

In this article “premises” has the same meaning as in section 79 of the Environmental Protection Act 1990^f3.

Annotations

Textual amendments

F1: Words in art. 45(1) substituted (9.4.2025) by The National Grid (Bramford to Twinstead Reinforcement) (Correction) Order 2025 (S.I. 2025/475), art. 1, Sch. Table 1
F2: Words in art. 45(1)(a)(i) substituted (9.4.2025) by The National Grid (Bramford to Twinstead Reinforcement) (Correction) Order 2025 (S.I. 2025/475), art. 1, Sch. Table 1
F3: Word in art. 45(1)(a)(ii) inserted (9.4.2025) by The National Grid (Bramford to Twinstead Reinforcement) (Correction) Order 2025 (S.I. 2025/475), art. 1, Sch. Table 1
F4: Word in art. 45(2) inserted (9.4.2025) by The National Grid (Bramford to Twinstead Reinforcement) (Correction) Order 2025 (S.I. 2025/475), art. 1, Sch. Table 1
F5: Word in art. 45(3) inserted (9.4.2025) by The National Grid (Bramford to Twinstead Reinforcement) (Correction) Order 2025 (S.I. 2025/475), art. 1, Sch. Table 1

Commencement

I1: Art. 45 in force at 4.10.2024, see art. 1

Footnotes

f1: 1990 c. 43. Section 82 is amended by section 5 of the Noise and Statutory Nuisance Act 1993, c. 40, section 106 of, and Schedule 17 to, the Environment Act 1995, c. 25 and section 103 of the Clean Neighbourhoods and Environment Act 2005, c. 16. There are other amendments to this Act which are not relevant to this Order.
f2: 1974 c. 40. Section 61(9) was amended by section 162 of, and paragraph 15(3) of Schedule 15 to, the Environmental Protection Act 1990, c. 43. There are other amendments to the 1974 Act which are not relevant to this Order.
f3: 1990 c. 43.