Irish Competition Authority Decisions

1. Notification was made by Adam F. Torrie (Properties) Limited on 30 September, l992 with a request for a certificate under Section 4(4) of the Competition Act, l99l 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 Adam F. Torrie (Properties) Limited and its tenants at Broad St. Shopping Centre, Waterford.

2. The notification concerns the leases relating to the shop units at Broad Street Shopping Centre, Waterford between Adam F. Torrie (Properties) Limited as landlord and the tenants of 20 shop units.

3. Adam F. Torrie (Properties) Limited is the owner and landlord of the Broad Street Shopping Centre. The tenants are engaged in various retail and service activities at the shopping centre.

4. The standard lease notified contains the following restricted user clauses viz.

(a) Under clause 3.29 the tenant covenants with the landlord "Not to assign, transfer or underlet or part with the possession or occupation of any part thereof or suffer any person to occupy the Demised Unit or any part thereof as an underlessee, licensee or as a concessionaire and in no circumstances or event to an assignee who would carry on any business of a non-retail nature But Notwithstanding the foregoing the Landlord shall.... not unreasonably withhold its consent to an assignment, transfer or underletting of the entire of the Demised Unit...."

(b) Under clause 3.31.1 the tenant covenants with the landlord "Not without the prior consent in writing of the Landlord or its Agent thereunto lawfully authorised to use or permit or suffer or allow the Demised Unit or any part or parts thereof to be used for any purpose other than as set forth in Part II of the First Schedule hereto and for no other purpose or purposes whatsoever ...... Provided Always And It Is Hereby Agreed And Declared that upon any application by the Tenant or any undertenant of the Tenant for liberty to alter or change the aforesaid permitted user of the Demised Unit the Landlord shall not unreasonably withhold its consent..."

(c) In the First Schedule, Part II the definition for the Permitted User " means use for the purpose of:

............and such other (if any) use or uses which may (whether in addition to or in substitution for the above mentioned use) at any time be expressly authorised in writing by the Landlord."

Details of the permitted user for each tenancy has been provided under which each tenant at the shopping centre is restricted to particular specified trading activities.

(d) By way of side letters the landlord has also agreed to exclusive user in relation to 5 units representing a Butchers, Newsagent/tobacconist, non specialist general giftware, unisex hairdressing and Restaurant/Coffee shop while assurances on a similar basis were issued in relation to 2 other units.

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

5. The Authority considers that Adam F. Torrie (Properties) Limited and the tenants are undertakings and that the notified leases are agreements between undertakings. The agreements have effect within the State.

6. 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, l993 in respect of shopping centre leases (Iris Oifigiuil of l0 September, l993, pp.665-667). The Authority therefore considers that the notified agreements between Adam F. Torrie (Properties) Limited and its tenants do not offend against Section 4(1) of the Competition Act, l99l.

7. 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 Adam F. Torrie (Properties) Limited and its tenants in relation to the lease of premises at Broad Street Shopping Centre, Broad St., Waterford notified under Section 7 on 30 September 1992 (notification no. CA/895/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority.

Des Wall

Member

15 December 1993