Is this a public space?

You might be surprised to learn that it is. It is a Privately Owned Public Space – POPS for short – which means that although it is private property and maintained by a private owner it is meant to be a space which is accessible and used by the public.

But more and more owners of these spaces are going to great lengths to discourage the public from using these spaces. Designs that incorporate walls along the street, constructing gates and fences, and displaying signs that gives the impression that the space is for private use only.

The reason for this is two-fold: first the agreements that the City signs with developers to build POPS, and second concerns around, and unfortunately experience with, liability.

Right now the city negotiates every POPS agreement with a developer individually every time there is a planning application where a POPS is proposed. Even if the starting point is the same the result is that each POPS agreement ultimately varies from site to site: some allow for 24/7 access while others only during certain hours, some are intended to provide a pedestrian thoroughfare while others a park like gathering space. This lack of standardization leads to confusion and misunderstanding among the public about what a POPS is and whether, in fact, they are public spaces. The negotiation process also increases development costs and creates uncertainty for developers.

An attempt to bring about better understanding and identification of POPS in the form of a sign campaign is only a partial solution at best. Ultimately better design leads to better outcomes whereas signage eventually recedes into the background and is ignored.

A better designed POPS agreement is ultimately the best solution. The city needs to develop one standardized POPS agreement then hold the line on ensuring it is applied in the same way with each new site. The city should also do what they can to have the standardized agreement apply to existing POPS as well.

The agreement should be flexible enough to account for different possible uses – whether as a park like space or a thoroughfare – and also recognize that the city changes and a development on an adjacent property may change the way a POPS is used. While the standardized agreement should be flexible in some areas it should also be rigid in others: access should be 24/7 and should disallow owners from undertaking modifications that discourage use of the space by the public.

Furthermore, the city needs to have more of a say on POPS design. Guidelines have been developed that try to encourage best practices but the problem is that they are merely guidelines. Instead they need to have the force of law, either through passage of a bylaw or by writing them into the new standardized POPS agreement.

The issue of liability is a huge concern as well. Ambulance chasing lawyers are all too willing to file frivolous law suits for simple slip-and-falls or other minor cases. Even where these cases are thrown out there is still a cost incurred by the property owner. Add these costs and headache to the cost and effort of maintaining the property to a safe and presentable standard and it is easy to see why many POPS owners would try to dissuade the public from accessing and using their space.

The solution to this is to have the City indemnify property owners from certain classes of law suits that may be filed in relation to the POPS space. As long as the POPS space is maintained to a reasonable standard of safety there should be no reason for a POPS owner fearing a suit. With this liability concern removed POPS owners have would little reason to want discourage the public from accessing their property. Indemnity can also be used as a means of leveraging existing POPS operators to amend their agreements to reflect the new standardized approach.

As the city continues to develop and grow the need for public spaces will continue to rise. With tightening budgets and fantastical proposals that would consume the parks development budgets for the next 25, the need for always accessible, quality POPS as a way to provide public space increases. The city needs to address the challenges that POPS present head on to ensure that these open spaces remain open and proliferate.