The Law of Public Spaces
Introduction
The Charter of Public Space1 defines public space as “all places publicly owned or of public use,
accessible and enjoyable by all for free and without a profit motive”. Public spaces are a key
element of individual and social well-being, the places of a community’s collective life,
expressions of the diversity of their common, natural and cultural richness and a foundation of
their identity. […] The community recognizes itself in its public places and pursues the
improvement of their spatial quality2. The core aspect of public space is that it is designed for all
citizens regardless of economic and political status, origin or nationality. For this reason public
spaces have to potential to make a city more equal and inclusive.3
Public spaces enhance community cohesion, civic identity, and quality of life. The liveliness and
continuous use of public space as a public good leads to urban environments that are well
maintained and safe, making the city an attractive place in which to live and work. Having
access to public spaces does not only improve the quality of life: it is also a first step toward
civic empowerment and greater access to institutional and political spaces. Properly designed
public spaces not only contribute to improve the overall visual character of a city, but they also
stimulate economic activities and enhance the productivity of the city.
Today we witness to the crisis of public space. Streets, green areas and open spaces are often
overlooked when planning cities and its quantity in world’s cities is diminishing. The poor
management of the existing public spaces leads to their abandonment and degradation and to
their privatization with limited access and fruition to the public.
National and local governments have always regulated public spaces through the application of
laws and local regulations. Despite the impact of these measures can be far-reaching, studies
on the relations between regulations and public space are relatively scarce and recent in urban
studies. This article will examine the main constrains that cities’ regulatory frameworks pose to
the sustainable creation, management and design of public spaces, identifying regulatory tools
and mechanisms that successful cities have put in place.
1 The Charter of Public Space is the outcome of an open, collaborative and participatory process announced at the 2012 World
Global Forum and carried out in collaboration with UN-Habitat, INU and other partners with the purpose of laying out a set of clear
principles to define public space and suggest appropriate actions for the creation, maintenance and enjoyment of good urban public
spaces.
http://www. biennalespaziopubblico.it/blog/wp-content/uploads/2013/11/CHARTER-OF-PUBLIC-SPACE_June-2013_pdf-.pdf
2 State of the World’s Cities 2012/2013: Prosperity of Cities
(http://www.unhabitat.org/pmss/listItemDetails.aspx?publicationID=3387). The charter of public space
http://www. biennalespaziopubblico.it/blog/wp-content/uploads/2013/11/CHARTER-OF-PUBLIC-SPACE_June2013_pdf-.pdf
3
Pietro Garau, Public Space: a Strategy for Achieving the Equitable City
Chapter 1: The creation of public spaces
Currently cities do not provide for an adequate amount of public space 4. A recent study conducted by UNHabitat5 on the land that cities dedicate to streets found that a large majority of African cities allocate a
very small percentage of land to streets: out of 18 African cities in the study, 13 allocated less than 15
percent, with the lowest level (6%) observed in Bangui in the Central African Republic. The same study
found that even in North American or European cities the proportion of land allocated to streets is much
lower in suburban areas than in the city centres. While the cores of most cities have more than 25 per
cent of land allocated to streets, in suburban areas it is less than 15 per cent. Among the reasons for the
inadequate provision of streets and public spaces are: (1) lack of adequate planning for urban expansion,
(2) inadequate provision in planning legislation and urban plans of standards for public space, (3) over
reliance of cities on expropriation to acquire land for public space, (4) the absence in the planning
frameworks of regulatory tools that allow cities to dedicate private land to public use in the process of
urbanizing without paying any monetary compensation. This chapter will describe the different
instruments that cities can use to acquire for public space.
Expropriation (Eminent Domain) is the most common way cities acquire land for streets, public spaces
and infrastructure. This approach relies on the exercise of the eminent domain or compulsory purchase
power of the government to acquire land from private owners for a purpose deemed to be in the public
interest subject to a fair compensation. The power to expropriate land exist in most nations of the world
but it is not the most effective way to deliver public space for several reasons: expropriation is
economically costly since cities do not have the financial resources to compensate land owners with the
market value of the land needed to have an adequate supply of public space. Expropriation is politically
costly and never a popular measure with voters. Expropriations are usually easily challenged and they
are subject to long and expensive proceedings in the courts during which the level of compensation is
usually determined through lengthy negotiations with the landowners 6. Lastly, it might be problematic
when building a major infrastructure to assemble multiple plots belonging to different owners and each of
these can turn into a separate process. For all these reasons cities are not able to provide an adequate
amount of public space by expropriating all the needed land.
Cities that have a large amount of public space have legal frameworks that allow them to obtain land from
private landowners in the process of converting the land from rural to urban use, when sub-dividing it or
developing it. The legal justification for such land contributions are: the public function of private property,
the fairness to share the increase the land values (LVS), the fair distribution of cost and benefits of
urbanization. These obligations are outlined in the land division and urban development rules which
describe a way to capture a portion of the land value increase derived from public actions.
(2) Subdivision Exactions: Urban regulations in some countries can require subdividers to dedicate
land, or to pay fees in lieu thereof, for streets, parks, schools and recreational purposes as a condition to
the approval of a final subdivision map. Fees-in-lieu are usually equal to the cost of land that the
developer would otherwise have to dedicate. Mandatory land dedication is generally upheld as a
justifiable use of the general authority that is granted to local governments to protect public health, safety
and welfare. There are several approaches to the problem of deciding how much land in an individual
subdivision should be contributed to public open space. Some cities have a flat or fixed percentage of
4
UN-Habitat recommends that at least 30 per cent of land is allocated for roads and parking, and at least 15-20 per
cent is allocated for open public space. http://unhabitat.org/wp-content/uploads/2014/05/5-Principles_web.pdf
5
Streets as Public Spaces and Drivers of Urban Prosperity, UN-Habitat 2013
6
Much More Than Land Assembly Land Readjustment for the Supply of Urban Public Services, Rachelle Alterman
2007.
land dedication while many municipalities instead use a population or density-based formula. In the
Philippines a developer requesting a land subdivision shall provide adequate roads, alleys and sidewalks.
In addition, for subdivision projects of one hectare or more, the developer shall reserve 30% of the gross
area for open space. Such open space shall consists of a minimum percentage of parks and playground
proportioned to the density7.
(3) Land readjustment is a land assembly tool able to change the existing physical layout of plots,
streets and public space when it appears to be no longer adequate. It entails the consolidation of all plots
in a given area to allow for the re-planning of the same to create a sufficient street network and adequate
public spaces. In Colombia for example almost 50% of the total re-planned area must be destined for
meeting mandatory public space requirements for local vehicular and pedestrian streets, parks and green
areas and secondary public services networks (water, sewerage, electricity, telephone)8.
(4) Compulsory Dedication of Part of the Land: In some countries the regulatory framework allows
cities to require private land owners that intend to development their plots to transfer part of their land for
public purposes without paying any compensation. The significance of this instrument is that it can be
applied to a development that is not otherwise subject to the subdivision regulations. In Israel, compulsory
dedication, called "partial expropriation without compensation”, is the most widely used method for
obtaining land for public services. The Planning and Building Law 9 allows local authorities to take up to
40% of a plot without paying compensation providing that the land is taken for one of the following
purposes: constructing or widening of roads, playgrounds, recreation areas, or construction of buildings
for educational, cultural, religious or health services. Compulsory Dedications are commonly used
throughout Latin America. In Colombia, for example, such exactions or transfers are charges land
developers must pay either in land or money as part of the approval process for a specific development.
They may consist of either land transfers for common areas, the development and equipping of such
common areas (parks and green zones), or urban infrastructure (such as road infrastructure and public
utilities); or they may utilize compensatory cash payments in lieu of any of these obligations. Developers
are willing to pay such exactions because the anticipated value of the proposed new development is
much higher than the cost of the exaction. From the early 1940s, these regulations included requirements
for owners and developers to transfer and actually develop some share of the developable land for public
and social uses. These transfer requirements represent a way of recovering the cost of infrastructure
7
Revised Implementing Rules and Regulations for BP 220, Philippines, Housing and Land Use Regulatory Board
2008.
8
Gestión del Suelo Urbano en el Marco del Ordenamiento Territorial, IGAC 2003.
9
Israeli Planning and Building Law, 5725—1965
works, since both the land transfer and the installation of infrastructure such as roads, parks, squares,
and public facilities are charged to the developer. Juridical discussions on the nature of these urban
charges have determined that they are charges to the real estate owner in order to compensate for the
increased land value generated by public authorization to develop the land. The tool has proven to be
useful in Medellín where the city has adopted a formula to calculate the developer exaction for a given
project based on the location of the proposed development. The developer can decide to either transfer
the land exaction to the city or pay the equivalent cash value. The Medellín example represents one
approach to developer exactions in which a specific formula is used to calculate the amount due from the
developer.
Table xx. Table format from Medellín POT Article 252 outlining approved uses and transfer obligations
City Sector
Approved Land Uses
Density
[Inhabitants
per building]
Construction
Index
[Buildable land
area
as
a
proportion
of
total plot size]
Transfer Obligations
Maximum
number of
floors
Square
meters per
Inhabitant
Square
meters
per 100
sq.
meters
of other
uses
% Minimum
Net Area
4
3.0
7
18
ZN1_CN1_2
230
Z1_CN2_7
270
3.00
3.0
7
18
Z2_RED_31
350
3.40
4.0
10
18
Z2_RED_26
300
2.0
5
0
Z4_CN1_12
350
3.40
5.6
20
18
Z6_D_5
170
1.40
5.6
20
18
4
Source: Juan Felipe Pinilla - Compiled from the POT of Medellín
An alternative approach is to allow the city to negotiate the exact amount of the exaction on a case-bycase basis.
(5) Negotiated exactions can take the form of in-kind contributions to local roads, parks, or
other public goods as a condition of development approval or can be requested in the form of inlieu fees. The advantage of the case-by-case approach is that it is more sensitive to the unique
features of each development. The disadvantage is that it depends on the integrity, analytical
capacity, and negotiating skills of municipal officials to arrive at a fair result. The strength of
formula-based approaches such as that employed in Medellín is that less is demanded of
officials charged with implementing the policy. The weakness is that even with slightly different
formulas for different zones within the city, the unique features of any given proposed
development may result in either over- or understating the desired “equitable distribution of
costs and benefits.” In some circumstances landowners and developers may be willing to
negotiate over additional contributions (voluntary exactions) when the existing planning
regulations do not permit nonagricultural development or do not allow for sufficient densities.
For example in Israel developers can negotiate to allocate more land than the compulsory 40
percent or to carry out in-kind construction of a public facility in order to have their development
rights upgraded10.
(6) Planning incentives provide a bonus, usually in the form of additional floor area (FAR) but
they can be reduced parking requirements, and other permitting and financial bonuses, in
exchange for the provision of a public amenity. One of the first applications of planning
incentives was in New York City11, where increased floor area was provided to office building
developers in exchange for the provision of public plaza space accessible to the public at the
base of the building.
(7) Encouragement of temporary public-space uses of idle land: The city of Monterrey has
introduced a creative way to obtain and use as public spaces private vacant and unused plots.
The owner of such plots can temporarily give his/her unused land to be used as green area,
garden or square in exchange for an exemption from the payment of property tax for the
duration of the agreement. At the end of the agreement, it may be renewed, or if finalized
returning the property to private use, with the improvements that would have made12.
In several countries of the global south subdivision regulations and minimum standards do not
take into consideration public space requirements. In several African countries no minimum
requirement is in place and it is left to the discretion of the urban planners and private
developers the creation of streets, sidewalks, open and green areas. In Mozambique, for
example, regulations describing the subdivision process13 do not provide parameters and
guidance on public space, streets and open areas. Some countries have only suggested
guidelines with no legally binding effects. In Ethiopia (see table below) for example the Structure
Plan Manual14 proposes for public space facilities and streets 30% to 45% of the land. In other
countries legal requirements exist but are extremely low and not adequate. In Egypt, for
example, every land subdivision that requires the creation of new access roads should dedicate
at least 33% of the land for both streets and open spaces.15 However, the exact amount to be
provided in each case is highly contested and not consistently provided due to ambiguities in
the law.
10
Much More Than Land Assembly Land Readjustment for the Supply of Urban Public Services, Rachelle Alterman
2007.
11
12
NYC Zoning Law, 1961
Reglamento de Zonificación y Uso de Suelo del
http://portal.monterrey.gob.mx/pdf/reglamentos/zonificacion.pdf
13
Regulamento do solo urbano 2006, decreto 60 de 26.12, Mozambique
14
Municipio
de
Monterrey,
Nuevo
Ministry of Urban Development and Construction. Urban Planning, Sanitation and Beautification Bureau, Structure Plan
Manual 2012
15
Executive regulations to law 199/2008
León
Chapter 2: The quality of the public space/place making
An adequate amount of public space is indispensable to have productive, vibrant and socially
inclusive cities but quantity alone it is not enough. Public spaces need to be designed to create
places where people enjoy walking and spending time and that encourage social interaction.
Properly designed public places can unlock opportunities, build vibrant communities and
contribute to a flourishing economy. The spatial structure of a city is very complex and it is the
physical outcome of the interactions over centuries between land markets, topography,
infrastructure, regulations and taxation16. The morphologic and physical character of cities is
affected but their rules and regulations. Rules guide the use and form of land occupation
deciding what can be built where and shaping over the years the urban landscape.
Unfortunately these effects are usually overlooked and not well understood and urban
regulations do not have clear policy objectives on the kind of city they intend to create and they
rely on abstract and uncoordinated numerical parameters (FAR, density, dwellings per acre,
setbacks, parking ratios etc.) whose physical outcomes are impossible to predict17.
Virtually in all countries urban regulations do not regulate important aspects of the urban form or
when they do they do not consider their effect on the quality of public spaces. Moreover, in
several countries of the global south regulations on minimum plots size, setbacks, plot coverage
and block length are inherited by colonial laws that intended to segregate uses and racial
groups and to discourage social interaction.
Vibrant public spaces need street life, shops and commercial activities, walkable streets, density
and diversity in the uses and activities. But the most common regulations on setbacks, plot
sizes, land use zoning, block length and plot coverage have the opposite effects. Setbacks,
especially when fenced, have a negative impact on the quality of the street life and increases
insecurity. Several countries have strict regulations on the setbacks that buildings have to keep
from the streets. For example in Kenya the current building code requires a 20 feet (6 metres)
open space along the whole width of the front of the building18 or in the Nigerian State of Kogi it
16
The Spatial Distribution of Population in 48 World Cities: implications for Economies in Transition, Alain Bertaud
and Stephen Malpezzi, 2003
17
18
City rules, How regulations affect urban form, Emily Talen, Island Press 2012.
Building Code of the Republic of Kenya (2009 Edition), regulation 17.
is required a 15.2 metres setback for township roads19. A research shows that in the case of
Curitiba, the Minimum Front Setback, 5 meters is the predominant parameter applied in 72
zones out of 101.20
Large blocks decrease the walkability and reduce possibility for densification. Often regulations
do not contain the maximum block length and when they do, it is excessive like the 500 m in
Chinese cities. In the Philippines the maximum length of block is 400 meters. However, blocks
exceeding 250 meters have to be provided with a 2-meter alley approximately at midlength21. A
study conducted by UN-Habitat revels that the density of the intersections, that results from block
length, is a good indicator to identify cities that are walkable and with a good street life. Figure
xxx displays the number of street intersections per km2 of urban area in the selected cities.
Cities range from 382.1 (Hong Kong) to 40.9 (Bangui) crossings per km2. In general streets with
100 crossings per km2, on average, allow for walking distance between crossing 100 meters
apart. This pattern is determined by blocks of around 9000 m2. Cities that have larger blocks
and that have less than 100 crossings per km2 have long distances between streets. The
distances between crossings tend to be very long, which reduces street life, urban intensity and
mobility and facilitates congestion22.
In several African countries the minimum plot size remains too large and in discordance with the
needs of dense and walkable urban centres but also of smaller cities and urban areas. For
19
The Town Planning and Development Board Edict 1991, Kogi State 1991.
The effect of land use regulation on housing price and informality: a model applied to Curitiba, Brazil, Maria
Teresa Xavier Souza.
20
21
22
Revised Implementing Rules and Regulations for BP 220, Philippines, Housing and Land Use Regulatory Board 2008.
The Relevance of Street Patterns and Public Space in Urban Areas, UN-Habitat Working Paper April 2013
example, in the Nigerian State of Kogi sizes of plots range between 900 and 1350 square
meters, in Rwanda the standard plot is 600 square meters23.
A growing number of cities around the world (Portland, Philadelphia, Los Angeles among
others) is moving away from conventional zoning codes, that tend to separate where we
live from where we work, learn, and shop, and insist on big, fast roads to connect them all. A
new generation of form-based codes is emerging. These codes encourage a mix of uses and
building types while emphasizing the form and function of public and private realms. Formbased codes are concerned with the character of the public realm, specifically how public realm
character is affected by the development of private property. They prescribe desired
relationships and establish expected outcomes for building types, block and street patterns,
street standards, and public spaces.
There are interesting examples of innovative regulations which aim at creating friendlier
environments for the pedestrians. Some cities like Melbourne24 and São Paulo25 have
introduced legislation with incentives to promote active building facades to make walking an
enjoyable experience. São Paulo for example provides urban development incentives for
buildings with retail services and facilities on the ground floor and with open access to the public
and incentives to promote mix use, like the reduction of the IPTU (Federal tax on urban
property) or the non-consideration of the commercial sqm in the calculation of the maximum
built up area.
In 1994 Melbourne introduced the “active edges” regulations to regulate the design of new
buildings to ensure a lively street and urban environment with a mix of functions and activities.
According to “active edges” regulations “buildings with ground -level street frontages in the
Retail Core must provide at least 5 metres or 80% of the street frontage (whichever is the
greater) as an entry or display window to a shop and/or a food and drink premises”. The most
important objective of introducing active edges along the city streets is to ensure that groundfloor facades appeal to pedestrians and contribute good lighting and levels of interest and
activity. Melbourne, from 1995 to 2005, experienced a 40% increase in pedestrian traffic. The
economic vitality of the city has improved proportionally—as evidenced by the increase in jobs,
tax revenues, and property values26.
The Rotterdam Spatial Development Strategy 2030 has as slogan Rotterdam, an effervescent
Port City. To achieve that aspiration, one of the strategies is to use public spaces as an
accelerator of spatial development through improving quality of public spaces at iconic
locations, Improving Linkages, Improving the overall quality of public space and Deploying the
water management issue to create the desired residential environments.27 Regulations were
introduced in order to have uniform street profiles, materials and furniture. The Rotterdam’s
plinth strategy based their proposal on an international comparison. Their main conclusions
were: Mostly public functions create Great Streets: shops, cafés, restaurants and education,
Great Streets have a minimum of a new public function in every 15 meters (6-8 public functions
every 100 meters) and finally, Offices are not important for great streets, living is possible if not
too dominant as a single function28.
23
UN-Habitat, Urban Legal Assessment 2014.
Urban Design Within the Capital City Zone, Melbourne, Ordinance 22.01 29/01/2015
25
São Paulo Master plan and law 16.050/2014
24
26
27
Places For People, City of Melbourne in collaboration with Gehl Architects, 2004.
Rotterdam Urban Vision
28
The City at Eye Level, Lessons for Street Plinths
Form-based codes have a strong legal basis and one of their peculiarity is that they dictate a
broader set of design principles and the use of specific standards in lieu of case specific review
processes. This approach reduces the discretion of planning authorities and makes the physical
outcome more predictable.
Chapter 3: The management and maintenance of public space
The Charter of Public Space recognizes that the management and maintenance of public space
is a prevalent responsibility of local authorities. In order to be discharged successfully, this role
requires the active collaboration of citizens, civil society and the private sector29. In several
countries the public management appears to be ineffective among other reasons for the unclear
or fragmented mandate among different authorities (environment, public works, planning etc)
and for the lack of adequate resources to properly maintain the public spaces.
In many cities, there is no clear understanding of the role of different departments nor
coordination between them. For instance, the sidewalks are responsibility of the Road
Department, trees of the Environment Department, cleaning and safety of the Health
Department, licensing of the Local Business Department, and so on. In such cases, clear
coordination mechanisms need to be developed in order to improve communication between
the different departments30. Some local governments have created unified public space
agencies to improve the institutional coordination in the management of public spaces. For
example, the Johannesburg City Parks and Zoo (JCPZ) is mandated by the City of
Johannesburg to manage the city’s cemeteries, parks and designated public open spaces as
well as to ensure that its environmental conservation function is carried out. JCPZ resulted from
the merger of several entities after an institutional review process conducted by the City of
Johannesburg. The organization has a growing portfolio in excess of 20 000 ha of green open
spaces and 3.2 million trees31.In Colombia, the Bogota’s Defensoria del espacio publico
(DADEP)32 has the mandate to protect, inspect, patrol, oversight, regulate and control the public
space in the district capital, including the inventory and the administration of city real estate
assets.33
Another problem that cities face to guarantee the full fruition of public spaces to their citizens is
the question of how to fund their management and maintenance. Cities that are more successful
in delivering quality public spaces have put in place mechanism to raise municipal revenues
through land value sharing mechanisms. These instruments allow cities to share with the land
owners the unearned value increments on real property due to planning decisions or public
investments. Colombian cities have several instruments to participate in the land value
increments. The City of Medellin, as explained above, requires private developers applying for a
building permit to dedicate part of their land to public spaces. When the property to be
developed does not include land that can be integrated into the city’s public space
infrastructure, the transfer obligation can be met through a cash payment. In 2011 Medellin
29
30
Charter of Public Space, para.32
UN-Habitat tool kit
http://www.jhbcityparks.com
32
http://www.dadep.gov.co/index.php/defensoria-del-espacio-publico
33
ACUERDO 18 DE 1999 por el cual se crea la Defensoría del Espacio Público.
31
collected 115,385 million COP (approximately US$58.7million) as revenue related to these
exactions34. The table below shows the collection for each year.
Revenue (COP) from urban obligations (developer exactions) in Medellín 2007- 2011
Year
For land for public
spaces and facilities
effective
For facilities
construction
Total Collection
30 June 2006 30 June 2007
9,041,615,169
3,278,340,096
12,319,955,265
30 June 2007 30 June 2008
20,138,463,509
1,323,794,214
21,462,257,723
30 June 2008 30 June 2009
25,601,097,754
6,278,059,125
31,879,156,879
30 June 2009 30 June 2010
23,314,742,905
4,591,264,467
27,906,007,372
30 June 2010 30 June 2011
18,244,795,121
3,572,772,658
21,817,567,779
Total
96,340,714,458
19,044,230,560
115,384,945,018
Source: Taller del Espacio Público- Departamento Administrativo de Planeación. 2012
Several cities collected revenues by accommodating informal-sector trading. These activities
generate income for high numbers of poor citizens and fair systems can be put in place for
licensing temporary occupation of public space for small traders, as well as artisans. Even small
cities have the potential to collected significant resources from the productive management of
public space. The Kiambu town, near Nairobi in Kenya, collects 14% and 8% of local revenues
respectively from parking and market fees35. Another useful approach cities are using is to
charge the temporary occupation of public space. The City of Monterrey in Mexico allows
owners of buildings or plots located in the city center to obtain the use of the public space in
front of their property for recreational purposes in exchange for their maintenance and a fee36. In
Bogota, The Defensoria del espacio publico succeeds in financing large part of its activities
through the management and profitable use of its assets37. Bogota’ also issues community
leases in exchange for maintenance and guardianship. The Defensoria can create Contratos de
administración, mantenimiento y aprovechamiento económico de espacios públicos (CAMEP)38.
These are voluntary agreements trough which community organizations can receive from the
city the use of public spaces with the commitment to maintain and manage them with the
revenues generated with their productive use. Many cities also charge motorists for entering or
parking in the city centre. The rationale is that vehicles compete with public transport, occupy
34
35
36
Land Value Sharing in Medellin, UN-Habitat 2014.
UN-Habitat, Kiambu County economic assessment, unpublished.
Reglamento de Zonificación y Uso de Suelo del Municipio de Monterrey, Nuevo León
http://portal.monterrey.gob.mx/pdf/reglamentos/zonificacion.pdf
37
Decreto 463 del 22 de diciembre de 2003 "Por el cual se reglamentan la administración, el mantenimiento y el
aprovechamiento económico del espacio público construido y sus usos temporales en Bogotá, Distrito Capital.
38
Decreto 463 del 22 de diciembre de 2003 "Por el cual se reglamentan la administración, el mantenimiento y el
aprovechamiento económico del espacio público construido y sus usos temporales en Bogotá, Distrito Capital.
public space and pollute the environment. It is only fair that motorists compensate the public for
the damage they cause. These measures, when implemented rigorously, not only generate
resources but also improve the quality of public space by reducing the impact of private
motorized traffic. In 2003 London introduced the “congestion charge” fee charged on motor
vehicles operating within the Congestion Charge Zone (CCZ)39. According to Transport for
London (TfL) figures, traffic levels since 2003 have gone down by 10.2% and in 2012/2013
biennium the TfL collected 132.1 million pounds of net revenues from the congestion charge40.
In the recent years new forms of joint or private management are emerging. There is great
potential for involving businesses of a different nature in non-profit public space development
and management but it is important for the public sector counterpart to be fully equipped to
establish, and manage, these partnerships in such a way that they become an asset in the
public interest. In Kenya since 2002 Adopt a Light partners with the City Council of Nairobi to
sell advertising space on streetlamps on public roads. Companies can “adopt” highway, street
and slum lights and in return for advertising, firms must maintain the costs associated with
lighting the lamps. There are several examples of private companies interested, for example, in
becoming patrons of a playground, a park, a street and several cities have in place incentives to
stimulate the involvement of the private-sector in the development and management of public
spaces.
Research has shown that investment of resources in the development and maintenance
of public space is likely to have a multiplier effect and generate more resources both for private
owners and for the municipality. For example, investments in street design and green spaces
produce higher real estate values, which determine in turn higher tax revenue. A recent report
from the Commission for Architecture and the Built Environment found that in London even
modest improvements to street design could result in a 5 per cent increase in the level of rents
for shops and a 5 per cent increase in the price of residential properties on the high streets41.
The Privatization of public spaces
A common trend of today’s urban development across developed and developing countries is
that the amount of public space in cities is changing and its creation and management is no
longer prerogative of public authorities. In some cases, the private sector is the main creator of
“public spaces” and spaces are becoming less public as a result of the exclusion of certain
conducts, activities, political practices and groups from private as well as state owned public
spaces. A privatized public space might be a new public space that is built, owned, or managed
by private businesses or might involve the transfer of ownership, management, or control of an
existing space from the local government to a private business owner or private nonprofit
organization. Sometimes these privatized public spaces are physically separated from the rest
of the city by gates or walls and form gated communities. These communities own, operate and
manage the residential property within their boundaries, including open space, parking,
recreational facilities and streets and rely on contractual conditions and restrictions to privately
govern and control land use, design decisions, services and social conduct. Although gated
communities have historically been the domain of the affluent, they are now becoming a viable
choice for both suburban and urban residential development and are spreading among diverse
39
The Greater London (Central Zone) Congestion Charging Order 2004.
https://tfl.gov.uk/cdn/static/cms/documents/consolidated-congestion-charging-scheme-order.pdf
40
Annual Report and Statement of Accounts 2012-2013, Transport for London.
41
Paved with gold, The real value of good street design. Commission for Architecture and the Built Environment, 2007
economic and social classes. The map below42 shows the development of privately managed
space in Gauteng (South Africa), which includes gated communities, office parks, boomed-off
areas and estates. The emergence of privately managed space in Gauteng has fragmented the
urban form, mainly in the Johannesburg, Tshwane and Ekurhuleni Metropolitan municipalities,
through the transformation of space from open to controlled access.
The rise of private management creates several categories of public spaces. There are spaces
that are publicly owned and privately managed. Central Park and Bryant Park fall into this
category: both are owned by New York City but primarily managed by private entities. But there
are also public spaces that are privately owned and privately managed. These hybrid places are
open to the public, but only during limited hours, and give the impression of being public, but are
under surveillance both electronically and by private security guards and have policies of
exclusion that decide who is welcome and who is not. The privately own public spaces (POPs)
are an example of such hybrids. New York City since 196043 encourages private developers to
provide spaces for the public within or outside their buildings by allowing them greater density in
certain high-density districts. Since its inception, the program has produced more than 3.5
million square feet of public space in exchange for additional building area or other
considerations such as relief from certain height and setback restrictions. The initiative has had
mixed success. Despite the impressive amount of public space created but much of it is not of
high quality. Some spaces have proved to be valuable public resources, but others are
inaccessible or do not attract public use for their poor design. Approximately 16 percent of the
spaces are actively used as regional destinations or neighborhood gathering spaces, 21 percent
are usable as brief resting places, 18 percent are circulation-related, four percent are being
renovated or constructed, and 41 percent are of marginal utility44. The Business Improvement
Districts (BIDs) are another example of such hybrids. In these areas, property owners pay
additional levies to complement existing municipal services in order to improve the urban
environment. Levies are applied in particular to keep areas clean, attractive and secure. Since
1997 the Gauteng region in South Africa regulates45 the City Improvement Districts (CIDs)” as
referred to in South Africa and and today there are at least 27 CID in the Gauteng region46.
42
The Gauteng City-Region Observatory, http://www.gcro.ac.za
43
The 1961 Zoning Resolution inaugurated the incentive zoning program in New York City.
http://www.nyc.gov/html/dcp/pdf/zone/zoning_maps_and_resolution_1961.pdf
44
45
46
http://www.nyc.gov/html/dcp/html/priv/priv.shtml
The Gauteng City Improvement Districts act 012 1997
http://www.cidforum.co.za/content/cids
Although privatization may reflect a city government’s inability to create and maintain public
space or its willingness to cede social control to businesses, management of nominally public
space as if it were private property does not guarantee the freedom of access and enjoyment
that should characterize public spaces and restricts the ability of cities to enhance community
cohesion, civic identity, and quality of life.
Street vendors and the rules on the access to public spaces
The concept of public space implies the fact that everybody should have access to it and be free
to communicate, interact and express his/her opinions. Access is the key criterion of legal
definitions in several countries. For example, public space is defined in Canadian law to be “a
place where the public goes, a place to which the public has or is permitted to have access and
any place of public resort”47. In England, public space is distinguished on the basis of access as
well. The fact of access to a space and not of ownership or of the legal right of access is the
determining criterion: “a public place means any place to which the public or any section of the
public has access, on payment or otherwise and any other place to which people have ready
access”48. Similarly, US supreme courts decisions have recognized that privately owned
shopping centers represents new public spaces.
In several countries many social, economic and political activities that occur in public spaces are
enabled and constrained by a variety of laws and regulations that restrict certain conducts,
activities, political practices and groups in both private and state owned public spaces. Street
vending is definitely one of the activities that faces the most severe legal restrictions. The term
street vending refers to small-scale businesses usually operating from urban public space.
Street vending is part of the urban informal economy, defined as legal or socially acceptable
activities operating partly outside the formal legal regime. Street vendors contribute highly to urban
economies and offer easy access to low cost goods and services in public spaces. In some
Asian and Latin American cities, street vendors form a large portion of the urban workforce. In
Hanoi and Ho Chi Minh City they represent 11 per cent of the urban workforce, in Lima 9 per
cent. National level statistics reveal that street vendors account for 11 per cent of total urban
employment in India and 15 per cent in South Africa49.
The review of the legal and regulatory frameworks governing street vending revel that they
normally obstacle the development of a healthy informal sector in which street vendors can
meet the demand for their products, they are complex and contradictory and rarely recognize
street vending as a legitimate component of national and urban economies.
Access to urban public space like pavements, roads, parks, beaches etc is crucial for street
vendors, who need proximity to busy pedestrian routes as main market to sell their services.
The main issues surrounding the regulation of street vending is the regulation of public spaces
since these are spaces that are theoretically open for all to use and enjoy indiscriminately. A
very difficult balance must therefore be found between the right of access to public spaces for
all citizens, on the one hand, and the right of street vendors to work and earn a living, on the
other. Many of the difficulties faced by street vendors, including the generally negative way it is
47
Vasan, R. S., 1980, Public place, The Canadian Law Dictionary. Don Mills: Law and Business
48
Fyfe, 1995b Law and order policy and the spaces of citizenship in contemporary Britain. Political Geography.
49
Women and Men in the Informal Economy: A Statistical Picture. ILO and WIEGO 2013.
perceived by wider society, are linked to the ways in which public spaces are managed by the
authorities. Innovative street design and management developed through participatory methods
can resolve conflicting demands among different users on the public space. For example,
Warwick Junction in Durban, South Africa50 managed to accommodate street vendors, improve
the vending environment, and facilitate pedestrian movements through a creative design where
a road closure and redesign of a pedestrian footbridge has accommodated many vendors. In
Urban planning legislation regulates the use of land, both private and public. The regulatory
regimes governing where, when, and how vendors may work are often inconsistent,
contradictory within a single area, or inconsistently enforced. In several countries, uses allowed
on public spaces such as parks and street pavements can prevent (no-vending zones) street
vendors’ access in an effort to manage what is seen as a threat to urban order and cleanliness.
In Senegal, for example, the 1976 Loi sur la occupation de la rue expressly forbids informal use
of space ("occupation anarchique de la rue")51. Issues of public safety and the movement of
vehicles are crucially important to the functioning of cities, but in many urban areas pavements
and road reserves are often wide enough and have the potential to accommodate diverse users.
In India some States have the most progressive legislation for street vendors. The Manipur
Town Planning and Country Planning Act, 1975 provides that in residential areas, there should
be a provision for four to six shops and ten hawkers for every 1000 persons. The Bubaneshwar
Development Authority has reserved three per cent of public space as commercial zone. Shops
are allotted in this zone on draw of lots. Space is also reserved on the pavement for street
vendors.
Zoning ordinances can also be harmful to street vendors and their livelihoods since they
segregate residential and commercial uses and restrict street vendors to areas that are
inconvenient to both vendors and their customers. Cities that permit sidewalk vending often limit
where it may take place. In American cities there are two approached: in cities like Portland,
Oregon, vending is permitted in any area zoned commercial52 while with another approach the
legality of vending activity varies by street and street section. For Example in New York City,
general vending is legal on six different sections of New York’s Avenue of the Americas and the
permitted hours of operation vary in each53.
Urban plans normally do not take into account the needs of informal vendors and their
implementation has often been one of the main justifications of street vendor evictions. Urban
plans should identify vending or market areas to accommodate street vendors in public space
rather than attempting to relocate vendors into off-street commercial spaces. In India
legislation54 introduced the need for every local authority to prepare a five-year street vending
plan in consultation with the planning authority. Such plans determine spatial vending zones as
restriction-free, restricted and no-vending zones. Enforcement commonly involves confiscation
of goods, destruction of premises, evictions, or prosecution. Being illegal also makes street
vendors vulnerable to harassment and extortion, irregular enforcement processes,
disappearance of goods, or physical violence. In 2006/7 in Tanzania alone an estimated
500,000 street vendors were evicted from the streets of the country's seven largest
50
Dobson, R., Skinner, C. with Nicholson, J., Working in Warwick, School of Development Studies, University of KwaZulu-Natal
51
Brown et al, 2009
52
Code of the City of Portland, Section 17.26.070A
53
New York City Rules, Title 6, Section 2-314
54
Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2012
municipalities, their goods confiscated or destroyed and their installations reduced to rubble,
with about 250,000 vendors prosecuted. There is the need to integrate informal workers and
their needs into city-wide plans to legally secure street vendors’ use of public spaces and to
facilitate their stability and reduce their uncertainty. The needs of street vendors and their
customers are often dismissed in urban planning decisions as irrelevant to a modern city's
growth and street vendors are often evicted by force when their traditional vending sites overlap
with sites for proposed development. The existence of street vendors is often seen as
incompatible with the image of the city as modern, orderly, and clean with no room for the
unorganised use of space. Often large infrastructure and urban renewal projects are designed
and implemented without consulting the street vendors affected by the proposals. It is crucial to
allow vendors' organisations to negotiate and demonstrate how innovative design can
incorporate vending in the new plans.
In countries where a significant proportion of urban dwellers works in the informal economy as a
result of the failure of the authorities to ensure work opportunities, street vendors should have
the right to use urban public space to support their livelihoods. Legislation governing the access
to and the fruition of public spaces should balance the interests of all citizens securing the right
to livelihood of street vendors, ensuring congestion free public spaces and streets, and
convenience of vending services for customers.
Conclusions
The article has described some of the legal constrains and enabling tools that help cities to
create, manage and ensure the enjoyment of their public spaces. Cities need urban planning
frameworks with clear requirements for the adequate provision of sufficiently connected and
well-designed public space. The definition and protection of public space should be the first and
most important requirement of any planning legislation and mechanisms for its protection need
to be enforced. Public space should be created from private owners in the process of
urbanization when agricultural land is subdivided or when constructing new developments.
Obtaining public space from private owners is a key step in building viable public spaces.
Countries that rely solely on expropriation will never be able to provide sufficient and
interconnected public space. Countries that leave the responsibility of creating streets and
public space to private developers will never get an interconnected and efficient street and
public space network. The analysis conducted by UN-Habitat on urban planning legislation in
several countries revels that most of the countries do not have in place clear requirements able
to guide planners and private developers to produce sufficient public space.
An adequate amount of public space is indispensable to have productive, vibrant and socially
inclusive cities but quantity alone it is not enough. Public spaces need to be designed to create
places where people enjoy walking and spending time and that encourage social interaction.
Planning and design rules and regulations affect greatly the morphologic and physical character
of cities but unfortunately these effects are usually overlooked and not well understood and
urban regulations do not have clear policy objectives on the physical outcomes they intend to
create. Cities should adopt form-based codes that encourage a mix of uses and building types
and establish expected outcomes for building, block and street patterns, street standards, and
public spaces. This approach reduces the discretion of planning authorities and makes the
physical outcome more predictable.
Cities do not have the financial resources to properly manage public spaces. They should adopt
legal instruments to share the increase in values of private properties due to planning decisions
or public investments. This is not only a sustainable way to gather resources but most
importantly it is a fair way to distribute equitably costs and benefits of urbanization. Value
sharing and the profitable management of public assets have the potential to provide the
resources needed to manage and improve public spaces. Although privatization may reflect a
city government’s inability to create and maintain public space or its willingness to cede social
control to businesses, the private management of public spaces does not guarantee the
freedom of access and enjoyment that should characterize public spaces and restricts the ability
of cities to enhance community cohesion, civic identity, and quality of life. Despite the defining
quality of public space is its non-excludable nature, in several countries many social, economic
and political activities that occur in public spaces are enabled and constrained by a variety of
laws and regulations that restrict certain conducts, activities, political practices and groups in
both private and state owned public spaces. Street vending is definitely one of the activities that
faces the most severe legal restrictions. We believe that in countries where a significant proportion
of urban dwellers works in the informal economy as a result of the failure of the authorities to
ensure work opportunities, street vendors should have the right to use urban public space to
support their livelihoods. Urban planning Legislation governing the access to and the fruition of
public spaces should balance the interests of all citizens including street vendors by requiring
urban plans to identify vending or market areas to accommodate street vendors in public
spaces.
We believe cities need a coherent legal framework that sets in place clear planning
requirements for public space, a coordinated institutional setting, fiscal instruments to ensure an
adequate revenue stream and rules on the access and enjoyment of public spaces that take into
account the different needs of the most vulnerable citizens. Many cities have realized the
important of well-designed and maintained public spaces in order to improve living conditions
and have adopted city wide public space strategies for a holistic, systemic approach to public
space creation, management and enjoyment in our cities.