PART 2PRINCIPAL POWERS
Defence to proceedings in respect of statutory nuisance
article 9 9.—(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990(1) in relation to a nuisance falling within sub-paragraphs (d), (fa)(2), (fb)(3), (g) and (ga)(4) of Section 79(1) (statutory nuisances and inspections therefor) of that Act no order is to be made, and no fine may be imposed, under section 82(2)(5) of that Act if the defendant shows that the nuisance—
article 9 1 a (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(6); or
article 9 1 b (b)is a consequence of complying with a requirement of this Order and that it cannot reasonably be avoided; or
article 9 1 c (c)is a consequence of the construction of the authorised development before completion of construction and that it cannot reasonably be avoided; or
article 9 1 d (d)relates to premises used by the undertaker for the purposes of or in connection with the maintenance, operation or use of the authorised development and that the nuisance is attributable to the maintenance, operation or use of the authorised development which is being maintained, operated or used in compliance with a requirement of this Order and that it cannot reasonably be avoided.
1990 c. 43. There are amendments to section 82(1) which are not relevant to this Order.
Section 79(1)(fa) was amended by section 101 of the Clean Neighbourhoods and Environment Act 2005 (c. 16).
Section 79(1)(fb) was amended by section 102 of the Clean Neighbourhoods and Environment Act 2005 (c. 16).
Section 79(1)(ga) was inserted by section 2 of the Noise and Statutory Nuisance Act 1993 (c. 40).
Section 82(2) was amended by section 5 of the Noise and Statutory Nuisance Act 1993 (c. 40). There are other amendments to section 82(2) which are not relevant to this Order.
1974 c. 40. Section 61 was amended by Schedule 7 to the Building Act 1984 (c. 55), Schedule 24 to the Environment Act 1995 (c. 25), and paragraph 15(3) of Schedule 15 to the Environmental Protection Act 1990 (c. 43). There are other amendments to section 61 which are not relevant to this Order.