Telcos are getting nervous about Clearspan Property taking control of multiple cellphone tower sites giving it greater negotiating leverage over site rentals. In a test case, the High Court rejected Spark complaints that site purchases amounted to ‘subdivisions’ in breach of resource management legislation.
Clearspan Property Ltd is a consortium of private investors. Bryan Mogridge is one of two directors and a minority shareholder. Majority interest lies with fellow director Mark Wheeler of Wheeler Property Holdings. The Court of Appeal was told Clearspan has been on an acquisition trail; buying up sites holding cellphone towers. Typically, telecoms companies build their towers on other people’s land, taking a lease of the small piece of land where a tower is situated.
With some deft legal footwork, Clearspan is achieving a de facto subdivision of land where towers are sited while avoiding the legal definition of a ‘subdivision’ as defined in the Resource Management Act.
In the test case before the court, Clearspan purchased a 5.25 per cent stake in a commercial property in the Auckland suburb of Mt Roskill. That saw Clearspan as owner of an undivided share of the entire property. A Spark cellphone tower sits at the back. Spark has a lease over the cellphone site only; amounting to 42 square metres of the total 809 square metre property. In an arrangement with its fellow owner, two land titles were issued: Clearspan has title to a 42 square metre lot where the cellphone tower is situated with rights as against its joint owner to exclusive possession over this 42 square metres; its joint owner has title to the remaining 767 square metres and similar rights of exclusive possession. At law, Clearspan and its joint owner remain owners of the entire Mt Roskill site by agreed proportions, but have agreed each has exclusive possession of defined areas. This is not a ‘subdivision’ the Court of Appeal ruled.
Spark New Zealand Ltd v. Clearspan Property Assets Ltd – Court of Appeal (13.07.18)
18.139