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It is easy for the landlord to undertake to enforce restrictions against other tenants to protect the tenant against noise, smells and other inconvenience. With the Contracts (Rights of Third Parties) Act 1999, the landlord could even enable the tenant to enforce against other tenants directly.

Yet landlords recoil at the very suggestion. So what can tenants do if something happens to make their premises less suitable?

Changes to the surroundings
In the Petra Investments case, it was the landlord who caused the problem. The tenant had taken a unit in a new development, conceived as a building with 'the atmosphere of a sophisticated department store'.

The centre was unsuccessful and the landlord created new floors over previously empty space in the atrium to attract more footfall. This was let as a Virgin Megastore. The effect of the changes was to abandon the original concept of a centre selling high fashion, for a large record store with some ancillary mixed retail traders.

Custom for the retail units fell and the tenant complained. The judge in the case concluded that although the unit was originally conceived as a retail unit within a centrally managed centre, it did not mean that the landlord had agreed not to do anything which might cause damage to the businesses of its tenants.

Although the landlord might have an obligation not to alter or use the common parts of the centre so as to cause it to lose its character as a retail shopping mall, the landlord was not obliged to maintain the initial clustering of ladies fashion retail throughout the term of the lease.

However, the judge thought there might be circumstances in which a large unit could be let in a way which would frustrate the expectations of other lessees by making their units less fit for their commercial purpose, so landlords cannot breathe an unqualified sigh of relief.

Platt v London Underground [2001] is a case where the tenant successfully objected to a change in its surroundings. The tenant of a refreshment kiosk at a tube station found that London Underground was closing off the exit at which the kiosk stood. The lease included a declaration that the tenant could not object to the construction, working or carrying-on by London Underground of its present or any future undertaking or works.

The court held that London Underground was not saved by the reference to its undertaking in the exclusion clause. That clause had to be construed against the landlord. It did not give the landlord freedom to manage its undertaking irrespective of the damage that might be caused to the kiosk business.

There was an 'irreducible minimum' implicit in the grant of the lease. Both parties accepted at the time the kiosk lease was granted that the kiosk would depend almost entirely for its business upon passengers leaving the station by that exit. So the tenant was entitled to damages.

Competition
There is no implied duty of the landlord not to let an adjoining property to a trade rival even if it reduces the profitability of the tenant's business (Port v Griffith [1938]).

Individual tenants in larger centres are particularly vulnerable. Where small retailers trade from units around a larger anchor store it is very easy for the large store to use its purchasing power to undercut the smaller competitor.

Adjoining occupiers
It is not only the actions of the landlord which may give rise to a cause of action. Like the Petra Investments case, Chartered Trust v Davies arose in circumstances where the landlord was forced to let to a tenant it had not originally contemplated.

The landlord of a development that was not prospering was forced to let a unit that had been empty to a pawnbroker.

The customers for the pawnbroker hung around outside the tenant's shop or would wait in the tenant's shop for the pawnbrokers to open. Extra staff were required, customers were deterred and the business suffered.

The landlord argued that the tenant could only complain if the landlord was responsible for something which made it physically or legally impossible to use the premises for the purposes permitted.

However, the court decided that the landlord was liable, as it failed to act to prevent the disruption of the tenant's business which arose from the way the pawnbroker conducted its business. It was not sufficient that the tenant could bring his own action to prevent the nuisance.

Litigation is too expensive, too uncertain and offers no protection against trespassing and threatening members of the public, the court said (a ringing endorsement for our system of administering justice).

Conclusion
The courts are tending to extend the landlord's responsibility for maintaining an environment in which their tenants can thrive. Wider exclusion clauses for landlords are bound to follow. Tenants should try to negotiate express protection in their lease rather than rely on principles implied by common law.