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.

Chapter 1: The creation of public spaces

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_June-2013_pdf-.pdf

3 Pietro Garau, Public Space: a Strategy for Achieving the Equitable City Currently cities do not provide for an adequate amount of public space4. A recent study conducted by UN-Habitat5 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 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.

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.

7 Revised Implementing Rules and Regulations for BP 220, Philippines, Housing and Land Use Regulatory Board 2008. (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 Law9 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 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 Transfer Obligations

8 Gestión del Suelo Urbano en el Marco del Ordenamiento Territorial, IGAC 2003.

9 Israeli Planning and Building Law, 5725—1965 Density Construction Maximum Square Square % Minimum [Inhabitants per Index number of meters per meters Net Area building] [Buildable land floors Inhabitant per 100 area as a sq. meters proportion of of other total plot size] uses ZN1_CN1_2 230 4 3.0 7 18 Z1_CN2_7 270 3.00 3.0 7 18 Z2_RED_31 350 3.40 4.0 10 18 Z2_RED_26 300 4 2.0 5 0 Z4_CN1_12 350 3.40 5.6 20 18 Z6_D_5 170 1.40 5.6 20 18 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-by-case 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 in-lieu 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.

10 Much More Than Land Assembly Land Readjustment for the Supply of Urban Public Services, Rachelle Alterman 2007.

11 NYC Zoning Law, 1961 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.

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

12 Reglamento de Zonificación y Uso de Suelo del Municipio de Monterrey, Nuevo León http://portal.monterrey.gob.mx/pdf/reglamentos/zonificacion.pdf

13 Regulamento do solo urbano 2006, decreto 60 de 26.12, Mozambique

14 Ministry of Urban Development and Construction. Urban Planning, Sanitation and Beautification Bureau, Structure Plan Manual 2012

15 Executive regulations to law 199/2008

16 The Spatial Distribution of Population in 48 World Cities: implications for Economies in Transition, Alain Bertaud and Stephen Malpezzi, 2003 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 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 midlength 21. 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.

17 City rules, How regulations affect urban form, Emily Talen, Island Press 2012.

18 Building Code of the Republic of Kenya (2009 Edition), regulation 17.

19 The Town Planning and Development Board Edict 1991, Kogi State 1991.

20 The effect of land use regulation on housing price and informality: a model applied to Curitiba, Brazil, Maria Teresa Xavier Souza.

21 Revised Implementing Rules and Regulations for BP 220, Philippines, Housing and Land Use Regulatory Board 2008.

22 The Relevance of Street Patterns and Public Space in Urban Areas, UN-Habitat Working Paper April 2013 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 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. Form- based 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

23 UN-Habitat, Urban Legal Assessment 2014.

24 Urban Design Within the Capital City Zone, Melbourne, Ordinance 22.01 29/01/2015

25 São Paulo Master plan and law 16.050/2014 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 ground- floor 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.

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.

26 Places For People, City of Melbourne in collaboration with Gehl Architects, 2004.

27 Rotterdam Urban Vision

28 The City at Eye Level, Lessons for Street Plinths

29 Charter of Public Space, para.32 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 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 For facilities Total Collection and facilities effective construction 30 June 2006 - 30 9,041,615,169 3,278,340,096 12,319,955,265 June 2007 30 June 2007 - 30 20,138,463,509 1,323,794,214 21,462,257,723 June 2008 30 June 2008 - 30 25,601,097,754 6,278,059,125 31,879,156,879 June 2009

30 UN-Habitat tool kit

31 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.

34 Land Value Sharing in Medellin, UN-Habitat 2014. 30 June 2009 - 30 23,314,742,905 4,591,264,467 27,906,007,372 June 2010 30 June 2010 - 30 18,244,795,121 3,572,772,658 21,817,567,779 June 2011 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 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

35 UN-Habitat, Kiambu County economic assessment, unpublished.

36 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.

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. 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 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.

41 Paved with gold, The real value of good street design. Commission for Architecture and the Built Environment, 2007

42 The Gauteng City-Region Observatory, http://www.gcro.ac.za

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.

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 http://www.nyc.gov/html/dcp/html/priv/priv.shtml

45 The Gauteng City Improvement Districts act 012 1997

46 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.

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. Many of the difficulties faced by street vendors, including the generally negative way it is 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

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 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 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.