Notification No: CA/308/92E ‑ Hanford Limited/Tenants of Poplar House Naas.

Decision No:  243

Introduction

1.	Notification was made by Hanford Ltd on 30 September 1992 with a request for a certificate under Section 4(4) of the Competition Act, 1991 or, in the event of a refusal by the Competition Authority to issue a certificate, a licence under Section 4(2) in respect of leases between Hanford Ltd and its tenants at Poplar House, Naas.

The Facts

(a)	Subject of the Notification

2.	The notification concerns the lease of 14 shop and office units in Poplar House, Poplar Square, Naas, Co. Kildare between Hanford Ltd as landlord and its tenants.

(b)	The Parties Involved

3.	Hanford Ltd, a subsidiary of FBD Insurance plc, is the owner and landlord of Poplar House, Poplar Square, Naas, Co. Kildare.  The tenants are engaged in various retail and service activities at the shopping centre.

(c)	The Notified Arrangements

4.	14 leases have been notified.  The restricted user clauses in the leases are as follows:

(a)	Under clause 3.02(3) the tenant covenants with the landlord "To keep the demised premises for the purpose of:                                                 PROVIDED ALWAYS that the demised premises or any part thereof, shall not be used for the sale, vending, consumption or otherwise of any type of foodstuffs on the said premises for human or animal consumption  only and not without the Landlord's consent in writing, which consent shall not be unreasonably withheld, to use or permit or suffer the same or any part thereof to used for any other purpose".

(b)	Under clause 3.02(5) the tenant covenants with the landlord  "Not to assign, transfer or underlet or part with possession or occupation of the demised premises or any part thereof or suffer any person to occupy the demised premises or any part thereof as a Licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold its consent to an assignment of the entire or underletting of the entire of the demised premises....."

(d)	Under clause 15 of the Fifth Schedule the tenant covenants with the landlord:"Not to carry on itself, nor to allow to be carried on by any assignee, subtenant or licensee of the Tenant any of the following professions, businesses or occupations at the demised premises:

	(a)	Life assurance, underwriters, brokers or agents.
	(b)	Insurance, underwriters, brokers or agents.
	(c)	The business of a Building Society.
	(d)	The businesses of Stockbrokers and/or financial consultants.
	(e)	Wholesalers, retailers, agents and dealers in interior furnishings of every description and kind.
	(f)	Retailer or wholesalers in shoes, boots or other footwear.
	(g)	A bank.
	(h)	The provision of selling of financial services".

The above sub‑clauses (a) to (h) are varied in each lease in the light of the permitted user attaching to each lease.

In addition there are a number of other standard restrictive covenants and obligations in the leases.

5.	Each lease contains details of the Permitted User under clause 3.02(3) attaching to each tenancy whereby the tenant is restricted to particular specified retail or service activities. In addition details of exclusive user granted in respect of a Building Society and the sale of interior furnishings have also been supplied.

Assessment ‑ The Applicability of Section 4(1)

6.	The Authority considers that Hanford Ltd and its tenants are undertakings and that the notified leases are agreements between undertakings.  The agreements have effect within the State.

7.	The Authority considers that the notified agreements, and their restricted and exclusive user clauses and the other standard restrictive clauses and obligations, do not have the object or effect of preventing, restricting or distorting competition in trade in any goods or services in the State or in any part of the State, for the reasons given in the Notice of the Authority of 2 September, 1993 in respect of shopping centre leases (Iris Oifigiuil of 10 September, 1993, pp. 665‑667).  The Authority therefore considers that the notified agreements between Hanford Ltd and its tenants do not offend against section 4(1) of the Competition Act, 1991.

The Certificate

8.	The Competition Authority has issued the following certificate:

The Competition Authority certifies that in its opinion, on the basis of the facts in its possession, the agreements between Hanford Ltd and its tenants in relation to the lease of the premises at Poplar House, Poplar Square, Naas, Co. Kildare, notified under Section 7 on 30 September, 1992 (notification no. CA/308/92E), do not offend against Section 4(1) of the Competition Act, 1991.

For the Competition Authority

Des Wall
Member
15 December 1993