PART 4  MISCELLANEOUS AND GENERAL  Power to transfer undertaking  Defence to proceedings in respect of statutory nuisance  34. —(1) Network Rail may—  (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.  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—  (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  (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.  (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.  ( a ) 1990 c. 43. Section 82 was amended by section 5(2) of the Noise and Statutory Nuisance Act 1993 (c. 40) and paragraph 6  of Schedule 17 to the Environment Act 1995 (c. 25).  ( b ) Section 79(1) was amended by section 2(2) of the Noise and Statutory Nuisance Act 1993, section 120 of, and paragraph  2(a) of Schedule 17 and paragraph 89(2) of Schedule 22 to, the Environment Act 1995, sections 101(2) and 102(2) of the  Clean Neighbourhoods and Environment Act 2005 (c. 16) and sections 109(2), 110(2), 111(2) and 112(2)(a) of the Public  Health etc. (Scotland) Act 2008 (asp.5). ( c )  Section 61 was amended by Schedule 7 to the Building Act 1984 (c. 55), paragraph 15(3) of Schedule 15 to the  Environmental Protection Act 1990 (c. 43), Schedule 24 to the Environment Act 1995 and paragraph 10 of Schedule 6 to  the Building (Scotland) Act 2003 (asp. 8).  ( d ) Section 65 was amended by paragraph 15(4) of Schedule 15 to the Environmental Protection Act 1990 and Schedule 24 to  the Environment Act 1995.  ( e )  1974 c. 40.  26