# The Network Rail (Cambridge South Infrastructure Enhancements) Order 2022, Article 32: Defence to proceedings in respect of statutory nuisance


(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) 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 may be imposed, under section 82(2) of that Act if the defendant shows—
(a) that the nuisance relates to premises used by Network Rail 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) or section 65 (noise exceeding registered level), of the Control of Pollution Act 1974; or
(b) that the nuisance is a consequence of the construction, operation or maintenance of the authorised works 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), do not apply where the consent relates to the use of premises by Network Rail for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to works.
(3) In proceedings for an offence under section 80(4) of the Environmental Protection Act 1990 (offence of contravening abatement notice) in respect of a statutory nuisance falling within section 79(1)(g) or (ga) of that Act where the offence consists of contravening requirements imposed by virtue of section 80(1)(a) or (b) of that Act, it is a defence to show that the nuisance—
(a) is a consequence of the construction, operation or maintenance of the works authorised by this Order; and
(b) cannot reasonably be avoided.
(4) The provisions of this article do not affect the application to the authorised works of section 122 (statutory authority as a defence to actions in nuisance, etc.) of the Railways Act 1993 or any rule of common law having similar effect.

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Source: https://www.legislation.gov.uk/uksi/2022/1406/article/32 (the official version)
Page: https://openlegislation.uk/network-rail-cambridge-south-infrastructure-enhancements-order-2022/article-32
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.