An open mind on privately-owned open space

Lazing by the river on a Sunday afternoon in a grassy park. The sun dances on the water. Yet another glorious Spring day in Brisbane. Other people have come out to enjoy this scene too: a family lunch, a group of friends picnicking and even a few individuals mopping up some sunshine. But none of these people are enjoying themselves. Something is troubling every single one of them. They all have the same disturbing thought. It is all consuming: "How can I enjoy this space if it is privately owned and there is a vested commercial interest over what happens here?"

Sound fictional? That's because it is. Most users of beautiful and freely accessible open space do not have property titling arrangements on their mind. In Brisbane, there is the very real possibility that privately owned open space created from recent development may be more beneficial to the community than publicly owned space. Let me explain.

When quality open space is provided as part of a development approval, the community benefits as Council does not have to pay a cent in purchasing land for open space or lose any revenue through credits. Take the example of the Grace on Coronation development at Toowong. Some people have argued that Council should have purchased the whole property outright and turn it into a park. This is not really an affordable option for Council given that the site sold for 20 million in 2013, which is more than 25% of this year's citywide parks maintenance budget.

Then why don't developers dedicate or give more land to Council for open space? Because of the long-term maintenance costs. In many cases, Council prefers that developers keep open space in private ownership with the onus on the future body corporate to pay for upkeep. This option means that the wider community wins by having access to quality open space that costs them nothing to maintain.

Some people believe that once the development is completed, public access to open space may become restricted by the body corporate. This is a legitimate concern for older development like at Mactaggarts Place Apartments in Teneriffe. For over 20 years, the public had access to a pathway next to the apartments, that provided a through connection to the Brisbane River Boardwalk. However, the pathway was on private property owned by the body corporate. In 2016, they decided to restrict public access to the land to create a private open space area for apartment residents. Recently, the pathway has been opened again to the public but there is no guarantee that it will stay this way in the future.

In the Mactaggarts Place example, it appears that there was no requirement in the original development approval for an easement to maintain public access. In the case of contemporary development applications in Brisbane, it is a standard condition of approval that easements be created to guarantee public access to open space in perpetuity. The easement rights are legally binding. Should the body corporate ever decide to use the land approved as publicly accessible open space for any other use, they would be in breach of the easement i.e. legal tenure. Council would have to officially relinquish their rights of tenure, without which, it would be unlawful to restrict access.

Even the development approval conditions requiring the land to be publicly accessible bind to the land any successors in title. Any future land purchaser will need to comply with the development conditions unless they are officially modified. Once again, Council would need to agree to any changes made to the conditions before the land use could change lawfully.

Another criticism of privately owned open space is that people are forced to engage in paid activity to remain in the space (e.g. buying coffee from a cafe). Commercial spaces like cafes are found in both public and privately owned open spaces as are leases to sporting groups and clubs. However, most of the open space provided still allows for passive recreation.

There is also a vast difference in the quality of facilities installed in a Council owned and maintained open space vs that provided in privately owned open space. In a Council owned and maintained park, Council will typically install standard issue park furniture and other embellishments (e.g. play equipment, sculptures). Whereas, in privately owned but publicly accessible parks, there is much broader scope for high quality embellishments that really add to a neighbourhood's sense of place.

Overall, there appears to be some misinformed, disparaging comments made about open space provided by development, when in reality, it is these spaces that can breathe new life into cities. This is the exact conclusion that was made by an urban planning researcher recently when investigating the contemporary public spaces of London:

Many urban designers criticise the privileged position the market has been given in policy and practice. They are particularly animated about the idea that the public spaces of the city are becoming increasingly commercial and well-secured. That they are being shaped by the narrow interests of the few at the expense of the many. Too often, they say, urban redevelopment is a case of developers versus society.

But in my own recent research into London's contemporary public spaces, I found these doom-laden assessments to be far from the mark. My research revealed that the new and regenerated public spaces of the city have found a diverse body of users who greatly value them; meanwhile, the creators of these spaces (both public and private) typically share an aspiration to deliver long-term social economic and environmental value. Professor Matthew Carmona

I would argue that these conclusions are relevant to Brisbane because of the high-quality of publicly accessible open spaces that will result from recent developments such as Queens's Wharf and Grace on Coronation. I look forward to enjoying these new open spaces knowing that land tenure will be the last thing on my mind. Instead, I'll simply be in the moment, lying on the grass and watching the sun glinting off the river on a lazy Sunday afternoon.