The Public Open Space Conundrum

Hong Kong people have recently come to realize that their right to use certain “privately operated public spaces” is an elusive, if not impossible, dream.

As Paul Zimmerman of Designing Hong Kong Ltd. rightly pointed out in his recent submission to LegCo’s Panel on Development, those so-called “public open spaces” should never have been called public in the first place.

“Times Square’s renting out of the piazza for private gain, Cheung Kong’s policing of itspond, the lack of seating in Pacific Place’s Park Court, the encroachment by bars onthe roof of IFC, 24 hour access to the podium of the Henderson’s Metro HarbourView – compliance by developers is merely a symptom of the real problem: these

spaces should never have been classified as ‘public’ open space in the first place.”

What seems even stranger is that, according to this news report, Time Square issued a statement arguing that the deed of dedication (regarding the piazza) allows the open space to be used for exhibitions and for the company to charge for utilities and services. One would have thought that “dedication” would mean giving up the right to use or enjoy. An online legal dictionary gives this interpretation of “dedication”: “The gift of land by the owner to the government for public use, and accepted for such use for or on behalf of the public. The owner of the land does not retain any rights that are inconsistent with the complete exercise and enjoyment of the public uses to which the property has been committed.” Whether the right to charge fees is inconsistent with the “complete exercise and enjoyment of the public uses” depends a lot on how the deed of dedication is actually worded, and on the spirit in which the deed was drawn up.

Leaving aside the legal wranglings of individual cases relating to the public’s right to use privately operated public open spaces (and whether they should be charged for such use for that matter), the key concern seems to be a planning one: that there is a general lack of open and/or recreation space for the public to enjoy.

“Not only does the public suffer from the lack of easily accessible, quality open space,

the so-called open space within private developments is a sub-standard replacement

and it appears impossible to make sure these spaces are managed for the benefit of

the public. After all, how ‘open’ is a podium garden? How ‘public’ is space managed by

private interests?” said Zimmerman in his submission.

This brings us to the age-old issue of how to find a balance (if it can ever be found) between community interests and the developers’ interests.

Courtesy of Civic-Express blogger, Carine Lai, the following is an excerpt of an insightful speech given in 1979 by the then Director of Home Affairs, John Walden, on the subject of public open space:-

“One one hand, the widely held belief that it is essential in Hong Kong to keep direct taxes very low, exerts pressure upon the Government to maximize revenue from land sales or from premia for lease modification or renewal. On the other, the need to provide open space and preserve what little natural beauty has survived… requires that wherever possible land should be made available for public open space and recreation, and that trees and historic buildings should be preserved.

Where these conflicts come into the open there is a tendency for views to polarize strongly. One one side there is a vociferous and articulate minority advocating preservation in the public interest, usually without much regard for the cost to the taxpayer. On the other, an influential minority pressing for development, usually with scant regard for the community interest. In the middle is the general public who are largely unaware of the value… of open space or environmental improvement. The opposing sides both have a valid point of view but in such situations the final decision usually favours developers. …the point has to be made that in this area of government it is not easy to safeguard such intangible community interests as open space, environmental improvement, conservation of nature and of historic buildings. However well minority groups articulate their arguments they are very unlikely to prevail where private developers and the Government have a common and substantial financial interest.”

Now, almost thirty years since Walden spoke on the subject, has anything changed?

Going back to the point of what spirit those deeds of dedication might have been drawn up in, would one even entertain the thought that the parties to the deeds (government and the individual landlords) would have very much the public’s interests in mind?