78 Power to divert waters when constructing or improving public road etc.S
(1)Subject to subsections (2) and (3) below, the roads authority may divert, or carry out works in relation to, inland waters (whether natural or artificial) or tidal waters where, in the opinion of the authority, such diversion is, or as the case may be works are, necessary for the construction, improvement or protection of a public road (or proposed public road) or of a site or facilities provided under section 55 of this Act.
(2)Before proceeding under subsection (1) above, the roads authority shall—
(a)serve on the owner and the occupier of any land affected, and on any navigation authority concerned with or having jurisdiction over the waters or over the area comprising those waters, notice of their intention so to proceed, describing the proposed diversion or works and informing them that they may object to the proposed diversion or works by notice to the authority within 28 days after service of the notice of intention on them; and
(b)consult any local authority in whose area the waters are situated and any other body acting under statutory powers, being powers the exercise of which may, in the opinion of the roads authority, be affected by the works:
Provided that, as regards any diversion or works, consultation under paragraph (b) above shall not be required with an authority or body receiving notice under paragraph (a) above.
(3)Where such objection as is provided for in subsection (2)(a) above is made in accordance with that subsection and is not withdrawn, then—
(a)if the roads authority is the Secretary of State, he shall not carry out the diversion or works without having considered the objection; and
(b)if the roads authority is a local roads authority, they shall not carry out the diversion or works without the consent of the Secretary of State who may grant such consent either unconditionally or subject to such terms and conditions as he thinks fit and whose decision shall be final.
(4)In subsection (2)(b) above the reference to a body acting under statutory powers includes a reference to the operator of a telecommunications code system (whether or not a body) acting in pursuance of any right conferred by or in accordance with the telecommunications code [F1and a reference to the operator of a driver information system (whether or not a body) acting in pursuance of a right conferred by or in accordance with section 12 of the Road Traffic (Driver Licensing and Information Systems) Act 1989].
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