## Power to transfer undertaking 

34. —(1) Network Rail may— 

## MISCELLANEOUS AND GENERAL 

## PART 4 

(a) transfer to another person (the “transferee”) its right to construct, maintain, use or operate the authorised works (or any part of them) and such related statutory rights and powers as may be agreed in writing between Network Rail and the transferee; or 

(b) grant to another person (the “lessee”) for a period agreed in writing between Network Rail and the lessee the right to construct, maintain, use operate the authorised works (or any part of them) and such related statutory rights and powers as may be so agreed. 

(2) Where an agreement has been made in accordance with paragraph (1) references in this Order to Network Rail, except in paragraph (1), include references to the transferee or lessee. 

(3) The exercise by a person of the rights or powers conferred by any enactment by any person in pursuance of any transfer or grant under paragraph (1) is subject to the same restrictions, liabilities and obligations as would apply under this Order if those rights or powers were exercised by Network Rail. 

(4) The consent of the Secretary of State is required for the exercise of the powers of paragraph 

(1), except where the transferee or lessee is the East West Railway Company Limited. 

## Defence to proceedings in respect of statutory nuisance 

35. —(1) Where proceedings are brought under section 82(1) (summary proceedings by person aggrieved by statutory nuisance) of the Environmental Protection Act 1990( a ) in relation to a nuisance falling within paragraph (g) of section 79(1)( b ) 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( c ) (prior consent for work on construction sites) or section 65( d ) (noise exceeding registered level), of the Control of Pollution Act 1974( e ); 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 

