What’s POPSing? Creating valuable privately-owned public spaces in Brussels

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The Tour & Taxis park has been described by De Standaard as “a quirky lab between slum and loft, for the city of today and tomorrow”. Adjacent to the park, “a bustling neighbourhood for everyone in Brussels to enjoy” with “generous space for people to stroll and relax together, or to attend events, exhibitions and festivals” shall arise. These promising descriptions rely on the public character of the area, whereas it is actually privately-owned. This blog post examines the legal status of such “privately-owned public spaces” in Brussels.

The value public space can have has already been described by several scholars, such as Ray Oldenburg and Henri Lefebvre.  For that value to be attained, it is essential that all kinds of people feel like they have the freedom to use that public space, in other words, the place must have a high degree of perceived publicness. Such perceived publicness is easier achieved in publicly-owned public space, as argued by Jeremy Németh. For example, governments are generally subject to a more stringent set of discrimination rules, with enforcement mechanisms such as administrative courts in place. Moreover, there is a transparent and democratic process of deciding which rules apply in those spaces. The Maximiliaanpark, a stone’s throw away from the Tour & Taxis park, illustrates this well: when former Secretary of State for Asylum and Migration, Theo Francken, expressed his will to “clean up” the park, referring to the use of the park by camping refugees, any attempt to interfere with the park’s situation was put under high scrutiny by the public and other politicians.

Knowing this advantage of having publicly-owned public space, the easy answer to the question of who the preferred owner of public spaces should be, is the state. However, reality is that budget-restrained governments seek other ways to create public space. For example, in the case of the Tour & Taxis park, a redevelopment of what was once an industrial railway site, would not have been possible without the involvement of a private actor. Plus, in constructions with ‘entangled’ spaces such as high-rise buildings with a public plaza, it is complicated to split ownership between private and public entities. It is only recently that Belgian property law has been opened up a little to accommodate for such property in ‘volumes’, but the possibilities remain complex.

The available legal tools to create POPS

In Brussels, the idea that public space might be wished for when new (private) constructions projects arise, is already reflected in the possibility to impose the obligation to include public space in a project for which a permit is sought as an ‘urban planning charge’ linked to that permit. However, perceived publicness is not reached by merely requiring spaces by law to be publicly accessible, without any further strings attached, as has been shown by urban planning scholar Jerold Kayden. In 2000, he documented over 500 spaces in New York City which were subject to that obligation. He found that owners of those privately-owned public spaces (POPS) often set up barriers to entry or to make use of the space, both psychologically (doormen, hard-to-find entrances) and physically (closed gates, no furniture). As a response, there are now more stringent rules in a specific Section in New York’s Zoning Resolution, including provisions on their design, opening hours, publicity, and enforcement. In 2017, the British newspaper The Guardian made an effort to list all POPS in the city of London. It concluded that almost all owners of them did not want to tell which exact rules applied in them, and experienced that its journalists were not free to carry out their news-gathering activities within them. As a result, the mayor of London, Sadiq Khan, promised to establish a new framework for such spaces, which would “seek to maximise access and minimise restrictions”.

This shows that it is not enough that Brussels authorities today are already able to ask for public space to be created when they grant permits. Public space must also be maintained. Can they do so today? This would mean that there would rest long-term and continuous obligations on the landowner. Moreover, it would have to be ensured that these obligations are equally imposed on new owners or tenants of the lot– it is not uncommon that the ownership structure of a large-scale project profoundly changes once construction is completed.

Looking at the Tour & Taxis case, we see that a ‘public access’ condition has been laid down in a specific zoning plan for the area with binding effect for anyone. However, the condition is described only briefly and does not take into account actions or omissions that decrease perceived publicness over time, as what was described in New York and London. Moreover, such plans are long documents that are costly to make. Thus, they are not a suitable tool for smaller projects.

Another instrument for achieving long-term results may be the use of easements as a permit charge. Easements create long-term obligations which can also be imposed on new owners of a lot. The use of easements in Belgium for reaching certain policy goals that are closely related to land use, such as preservation of nature or reduction of greenhouse gas emissions, has already been explored by several scholars. They have always concluded that today’s easement rules are not flexible enough for these purposes.

The current tools do not offer a satisfying solution

By allowing the creation of public space as a permit charge, the legislator offers a way to create public spaces where governments do not own land themselves. However, experience shows us that such a minimal tool does not suffice to let POPS live up to their full potential. The combined use of charges and easements can not fulfill that promise either.

The insufficiency of the existing tools is shown by what will ultimately happen to the Tour & Taxis park: its ownership will reportedly, once all construction works have finished, be transferred to the Brussels Region. This demonstrates that governments are straying away from keeping public space private, because certainty on their continuous perceived publicness cannot be reached under current laws.

Current administrative and property law must therefore be adapted as to offer more options for attaining and maintaining POPS. Keeping in mind the benefits or sometimes dire need of involving private parties in city development, the law can then truly act as ‘deal maker’ rather than ‘deal breaker’.

Tuur Desloovere is a Master of Laws student at KU Leuven. He researched the value of public space and the legal tools available to create it as part of training in interdisciplinary study of law, combining insights from urban studies, sociology and legal sciences under the supervision of Peggy Valcke.

Tuur DESLOOVERE, "What’s POPSing? Creating valuable privately-owned public spaces in Brussels", Leuven Blog for Public Law, 8 January 2021, https://www.leuvenpubliclaw.com/whats-popsing-creating-valuable-privately-owned-public-spaces-in-brussels (geraadpleegd op 21 October 2021)

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