Communications Act 2003, Schedule 3A, paragraph 105

Meaning of “occupier”

SCHEDULE 3A The electronic communications code

105 (1) References in this code to an occupier of land are to the occupier of the land for the time being.

(2) References in this code to an occupier of land, in relation to a footpath or bridleway that crosses and forms part of agricultural land, are to the occupier of that agricultural land.

(3) Sub-paragraph (4) applies in relation to land which is—

(a) a street in England and Wales or Northern Ireland, other than a footpath or bridleway within sub-paragraph (2), or

(b) a road in Scotland, other than such a footpath or bridleway.

(4) References in this code to an occupier of land—

(a) in relation to such a street in England and Wales, are to the street managers within the meaning of Part 3 of the New Roads and Street Works Act 1991,

(b) in relation to such a street in Northern Ireland, are to the street managers within the meaning of the Street Works (Northern Ireland) Order 1995 ( SI 1995/3210 ( NI 19)), and

(c) in relation to such a road in Scotland, are to the road managers within the meaning of Part 4 of the New Roads and Street Works Act 1991.

(5) Sub-paragraph (6) applies in relation to land which—

(a) is unoccupied, and

(b) is not a street in England and Wales or Northern Ireland or a road in Scotland.

(6) References in this code to an occupier of land, in relation to land within sub-paragraph (5), are to—

(a) the person (if any) who for the time being exercises powers of management or control over the land, or

(b) if there is no person within paragraph (a), to every person whose interest in the land would be prejudicially affected by the exercise of a code right in relation to the land.

(7) In this paragraph—

(a) “agricultural land” includes land which is being brought into use for agriculture, and

(b) references in relation to England and Wales to a footpath or bridleway include a restricted byway.

Definitions used in Schedule 3A, paragraph 105 1

land

(8) In this paragraph, “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Defined in Sch.4 para.5(8) · see it in the full Act

Cases considering Schedule 3A, paragraph 105 4

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2022] UKSC 18 · 22 June 2022Interprets

The paragraph identifies the occupier for the time being and provides alternatives for unoccupied land. Only the occupation of the applicant operator is disregarded; another operator's occupation remains material. (see paras [137]-[140]; [162]-[164])

Cornerstone Telecommunications Infrastructure v Ashloch Ltd & Anor (Rev 2)

[2021] EWCA Civ 90 · 29 January 2021Defines

The statutory concept of occupier is applied primarily as a factual question concerning physical presence and control rather than legal status. (see paras [81]-[84])

Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd

[2019] EWCA Civ 1755 · 22 October 2019Interprets

The court applied the reference to the occupier “for the time being”. The person who makes an agreement conferring rights must therefore be the factual occupier when that agreement is made (see paras [15]; [54]; [84]-[85]). The court applied this provision only to land that is unoccupied. It supports the distinction between actual occupation and the separate deeming rules for unoccupied land (see paras [15]; [54]; [81]-[82]). For unoccupied land, the deeming provision first identifies the person actually exercising management or control, then applies to prejudicially affected interests only if there is no such person. It does not override factual occupation under paragraph 105(1) (see paras [54]; [59]; [81]-[82]).

What each judgment says about Schedule 3A, paragraph 105 is in the case-law panel in the full Act.