Kingston Upon Hull City Council v Superstadium Management Company Ltd [2015] EW Misc B29 (CC) concerned a sports complex, which was the home of Hull City Football Club, as well as a rugby league club, and which contained an indoor sports hall and external facilities, including two all-weather pitches.
The complex was to a tenant for 50 years at a peppercorn rent on terms requiring the tenant to use the premises to provide recreational and sporting facilities and to make them available for use by residents of Kingston upon Hull at reasonable times and at charges and conditions broadly comparable to those charged by the council for similar facilities elsewhere. The tenant also covenanted not to do anything that would materially detract from the use of the premises as a community facility.
The litigation was sparked by the tenant’s decision to resurface the floor of the sports hall. The floor was made of sprung wood so that it could be used for a wide variety of indoor sports, but the hall was losing money. Only large events and 5-a-side football bookings were profitable. Consequently, the tenant chose to lay a synthetic turf pitch instead. This was done by depositing 60 tonnes of rubber and sand on top of the existing flooring, which restricted the potential uses of the hall and rendered it unavailable for sports that require smooth, flat, hard flooring – but opened the hall up to alternative sports instead.
The council claimed that the tenant was in breach of the covenants in its lease and sought an order for the reinstatement of the floor. The case turned on the interpretation of the user covenants because it was common ground that there had not been any breach of the covenants controlling physical alterations to the premises.
The tenant argued that it had continued to make the hall available to the general public at charges equivalent to those made by the council elsewhere – and that it was still used by a variety of local groups and organisations. No one person, party or club, and no particular type of sport, had been given priority, although the tenant expected Hull City Football Club’s academy for young players (with which it was associated) to become a regular user. Furthermore, it was possible to place a removable hard surface on the top of the artificial pitch; the tenant had done this while hosting major events such as a national trampolining competition – and was willing to do so again.
The judge noted the length of the lease and that circumstances and sporting activities can be expected to change over a 50 year period. The lease did not expressly require the tenant to accommodate sports requiring a hard sprung surface in the hall – and the fact that the installation of the new surface was a permitted alteration was another important factor when construing the user covenants.
The hall was being used for the provision of “recreational and sporting facilities”. Therefore, the tenant was not in breach of its user covenants and the council’s claim for an injunction failed.
Allyson Colby is a property law consultant
