The controversial installation of a 3G surface in a sports hall at Hull City’s KC Stadium was not a breach of lease, a judge has ruled.
Kingston Upon Hull city council, as landlord, took action over the move, which prevents a number of sports and activities from being carried out in the hall any longer. The council sought an injunction requiring removal of the 3G “carpet”.
However, the judge found in favour of tenant Superstadium Management Company (SMC), finding it had not breached the terms of its 2004 tenancy in respect of the sports hall, known as the Airco Arena.
He said that until 13 April 2015 the floor surface of the hall was of a sprung wood construction – “effectively a classic gymnasium floor” – and that 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.
However, on 14 April 2015, the 3G “artificial synthetic turf carpet” was laid out over the existing flooring, effectively preventing a number of sports and activities – such as netball and trampolining – while enabling others.
The council claimed that the installation of the 3G surface was a breach of the covenants in the lease and sought mandatory orders requiring the reinstatement of the hall, if necessary by the removal of the 3G surface.
The judge said that the main motivation for installing the 3G pitch was to boost the chances of Hull City’s academy – currently a Category 3 Academy under the Premier League’s Elite Player Performance – achieving Category 2 status.
In his decision, the judge said: “It is important to have clearly in mind what this case is not about. It is not a comparison of the merits of sports such as trampolining and netball as against football. Nor is it about the desirability of the academy having Category 2 status. Nor is it about the profitability of five-a-side football over trampolining. The issue for me to decide is whether on the true construction of the lease SMC were permitted to install the 3G surface.
He added: “The lease is a lease for 50 years. Thus, the term is 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 can 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 is not a structural alteration and thus is expressly permitted under the proviso to clause 3.4.1 without the need for the council’s consent.”
Surveying a number of clauses relied on by the council, he came to the conclusion that there was “no breach of covenant”.
Kingston Upon Hull City Council v Superstadium Management Company Ltd Leeds County Court (Judge Behrens) 18 September 2015
Edward Denehan (instructed by Kinston-Upon Hull city council) for the claimant
Jonathan Gaunt QC (instructed by Rollits LLP) for the defendant