Part 2

Networks, services and the radio spectrum
Chapter 1

Electronic communications networks and services

Restrictions in leases and licences

Restrictions in leases and licences
134
1
This section applies where provision contained in a lease, licence or other agreement relating to premises has the effect of imposing on the occupier a prohibition or restriction under which his choice of—
a
the person from whom he obtains electronic communications services, or particular electronic communications services, or
b
the person through whom he arranges to be provided with electronic communications services, or particular electronic communications services,
is confined to a person with an interest in the premises, to a person selected by a person with such an interest or to persons who are one or the other.
2
This section also applies where—
a
provision contained in a lease for a year or more has the effect of imposing any other prohibition or restriction on the lessee with respect to an electronic communications matter; or
b
provision contained in an agreement relating to premises to which a lease for a year or more applies has the effect of imposing a prohibition or restriction on the lessee with respect to such a matter.
3
A provision falling within subsection (1) shall have effect—
a
as if the prohibition or restriction applied only where the lessor, licensor or other party to the agreement has not given his consent to a departure from the requirements imposed by the prohibition or restriction; and
b
as if the lessor, licensor or other party were required not to withhold that consent unreasonably.
4
A provision falling within subsection (2)(a) or (b) shall have effect—
a
in relation to things done inside a building occupied by the lessee under the lease, or
b
for purposes connected with the provision to the lessee of an electronic communications service,
as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.
5
Where (whether by virtue of this section or otherwise) a provision falling within subsection (1) or (2) imposes a requirement on a lessor, licensor or party to an agreement not unreasonably to withhold his consent—
a
in relation to an electronic communications matter, or
b
to the obtaining by the occupier of premises of an electronic communications service from or through a particular person,
the question whether the consent is unreasonably withheld has to be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.
6
OFCOM may by order provide for this section not to apply in the case of such provisions as may be described in the order.
7
References in this section to electronic communications matters are references to—
a
the provision of an electronic communications network or electronic communications service;
b
the connection of electronic communications apparatus to a relevant electronic communications network or of any such network to another; and
c
the installation, maintenance, adjustment, repair, alteration or use for purposes connected with the provision of such a network or service of electronic communications apparatus.
8
In this section—
- “alteration” has the same meaning as in the electronic communications code;
- “
lease
” includes—
  1. a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, and
  2. in Scotland, a sub-lease and an agreement to grant a sub-lease,
and “
lessor
” and “
lessee
” are to be construed accordingly;
- “lease”—
  1. in relation to England and Wales and Northern Ireland, includes—
    1. any head lease, sub-lease or underlease,
    2. any tenancy (including a sub-tenancy), and
    3. any agreement to grant any such lease or tenancy;
  2. in relation to Scotland, includes any sub-lease and any agreement to grant a sub-lease,
and “lessor” and “lessee” are to be construed accordingly;
- “relevant electronic communications network” means—
  1. a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; or
  2. an electronic communications network that is, or is to be, connected (directly or indirectly) to such a network.
9
This section applies to provisions contained in leases, licences or agreements granted or entered into before the commencement of this section to the extent only that provision to that effect is contained in an order made by OFCOM.
10
This section is not to be construed as affecting the operation of paragraph 2(3) of the electronic communications code (lessees etc. bound by rights granted under code by owners).
11
The consent of the Secretary of State is required for the making by OFCOM of an order under this section.
12
Section 403 applies to the powers of OFCOM to make orders under this section.
13
A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
S. 134 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))
Words in s. 134(8) substituted (15.3.2021 for specified purposes) by Telecommunications Infrastructure (Leasehold Property) Act 2021 (c. 7), s. 3(3)(b)(4), Sch. para. 2
S. 134 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)