Council loses bid to get injunctions against club owners over 3G surface

Hull City Council has failed in a High Court bid to obtain injunctions against the owners of Hull City Football Club over the installation of a 3G surface in a sports hall.

In Kingston Upon Hull City Council v Superstadium Management Company Ltd [2015] EW Misc B29 (CC) the local authority had sought mandatory injunctions against its tenant, Superstadium Management Company Limited (SMC).

The dispute related to the terms of a tenancy dated 1 September 2004 of a sports park to the north of Anlaby Road, Kingston Upon Hull.

The two main elements of the sports park are the KC Stadium, home to the Championship football club, and a sports hall complex, which includes a sports hall building known as the Airco Arena.

Until 13 April 2015 the floor surface of the hall was of a sprung wood construction. It was used by sports clubs, schools and colleges and members of the public for a wide range of sports, including football, hockey, martial arts, badminton, gymnastics, netball, roller skating, boxing and trampolining.

On 14 April 2015, a 3G carpet was laid within the hall. The surface was an artificial synthetic turf carpet, laid on the existing flooring with 60 tonnes of rubber and sand deposited on top. No other changes were made to the hall.

Following the installation of the 3G surface, a number of sports and activities could not utilise the hall in the same manner as before. However, other sports and activities which were carried out previously could still be carried out following the installation.

In addition some sports and activities which previously were unable to utilise the hall due to the potential for injury on the hard floor or because the hard floor was an unsuitable surface, could now utilise the hall.

The installation of the 3G surface did not completely preclude certain sports being carried out in the hall in future.

The city council argued before His Honour Judge Behrens, sitting as a judge of the High Court in Leeds, that the installation of the 3G surface was a breach of the covenants in the 2004 lease.

It sought mandatory orders requiring the reinstatement of the hall if necessary by the removal of the 3G surface.

The tenant, SMC, denied that there had been any breach of its obligations under the lease.

The company also contended that the relief sought was not sufficiently precise and would compel it to run its business in a way that it did not wish. It accordingly argued that even if there was a breach of the terms of the lease there should be no mandatory injunction.

HHJ Behrens ruled in favour of the tenant company. He said he agreed with a number of general points made by counsel, including that:

• The lease was a lease for 50 years and the term was therefore lengthy. “Circumstances and sporting activities may be expected to change over a 50 year period. Some sports may decline and become less popular. Some may be expected to increase. New sports may emerge.”
• Some sports could obviously not be accommodated in the hall. “Examples given in the course of argument included swimming and ice hockey. There is no express term in the lease requiring SMC to accommodate particular sports in the hall at any particular time.”
• The installation of the 3G surface was not a structural alteration and thus was expressly permitted under the proviso to clause 3.4.1 without the need for the council's consent.

The judge also reviewed various clauses in the lease and rejected the council’s claims that there had been breaches.

Responding to the ruling, Hull City Council said: “We are, of course, extremely disappointed with the court’s decision, which applies a strict legal interpretation of the lease that was drafted some 12 years ago.”

It added: “Regrettably, the council's position was also weakened by the FA's interpretation of the exclusivity requirements they apply to training academy facilities.

The facility remained an important part of the city’s community sports provision, the statement said, “reflecting the reason the council originally invested in its development, and we have a duty to safeguard that”.

The council added that it remained “convinced that taking legal action was the morally right thing to do, reflecting our support to the many community users who have been displaced as a result of the SMC's actions”.