Antonia Layard – Protecting (Urban) Public Spaces: Playing by the rules or playing out?


Event Date: 30 April 2014

The Institute of Advanced Study
Millburn House
Millburn Hill Road
University of Warwick Science Park

The Kent Law School presents:

The Public Life of Private Law

An ESRC Seminar Series

Seminar 4: Protest, Precarisation, Possibility

Increasingly, private law appears in the the government of unruly political movement and resistance – through the privatisation of public space and the designation of protest as trespass; through the contractualisation of public services and the discipline of labour; through the generation of private spheres where government power is deployed in unanticipated ways.  How should we characterise the experience of government through private law? What vulnerabilities does  private law highlight in those it governs? To what extent does private law confer overlooked capacities on troublesome actors, which can generate new strategies of resistance?

Antonia Layard –  Protecting (Urban) Public Spaces: Playing by the rules or playing out?

In England, there is no legal conception of public space. Public space, other than the public highway, which is congested with traffic of all kinds, is not a meaningful legal category. Urban spaces are governed first and foremost through rights of property with even public landowners able to evict trespassers at will, provided that there is no breach of their human rights. There is no equivalent in England to the ‘public forum’ doctrine (however limited) found elsewhere.

This lack of legally protected public space has not always been problematic for everyday activities, even though street vendors, protestors and homeless sleepers have long been governed through legal and extra-legal means. Many activities in (apparently) public spaces have been tolerated by landowners.

Increasingly, however, changing property practices have highlighted constraints on public uses of space. These include (1) the escalation of privately-owned and very large, urban retail schemes, where smoking, hoodies, playing guitars or taking photographs are all prohibited. Urban cores are increasingly the property of multinational property companies (enclosing 42 acres of central Liverpool in ‘Liverpool One’, for example or 36 acres of central Bristol in ‘Cabot Circus’). These companies may call spaces ‘public squares’ or ‘public realm’ in their brochures, yet they are very much under their own control, surveilled in the first instance by security guards and CCTV, rather than the police; (2) the increasingly routine practice of evicting protestors from apparently public places after the briefest of demonstrations (including by universities) or even, as Occupy found in Paternoster Square, by injunction before they arrived; (3) withdrawing ‘implied permission’ from sites including shopping centres and mainline train stations, spatially banning ‘troublemakers’ and preventing addicts, for example, from collecting their methodone prescriptions from these pharmacies. Often undertaken as exercises of crime prevention, or to improve the ‘retail experience’, these exercises of property rights legally eradicate some individuals from these apparently public spaces; (4) growing disputes over proposals by public parks to charge for sports teams or fitness trainers using their trails or the increasing need for local authority community centres to charge for their activities, attempting to ‘make public assets pay’ at a time of severe local authority budget cuts; and (5) outside city cores, a decline in neighbourhood pubs, particularly in poorer fringe communities, as they are sold by ‘pubcos’ (property companies) for supermarkets or housing. Away from prosperous suburbs or city centres, associational spaces (local shops, café or pubs) are increasingly absent.

In all of these ways, property muscles have been strengthened. What is striking is that this is not only in privately owned spaces, though these are significant and increasing, but that public landowners who might be expected to promote sites for public interaction have been similarly restrictive. Protestors are ejected from universities, addicts are excluded from train stations, athletes are proposed to be charged for sports activities and city centres are sold to private developers as privatised retail spaces, even though universities, train stations, parks or local authority owned buildings might all be understood as public sites. This is achieved first and foremost through property ownership (Layard, 2010), since there is no mechanism to protect public space as we might a site of historical significance or an area of outstanding natural beauty.

These practices raise important questions for cities and towns where there is no equivalent to the rural ‘right to roam’ or a national park. With these profound concerns about the loss of public spaces (Low and Smith, 2013; Parkinson, 2014; Madanipour, Knierbein and Degros, 2013; Mitchell, 2003; Mitchell and Staeheli, 2004; Minton, 2010), how can we then legally, or illegally, claim, or reclaim, public spaces? Can we spatialise ‘the public’ (or ‘the publics’ (Calhoun, 1992)); can we ensure that there are places in which private people can, in Habermas’ terms, ‘come together as a public’ (Habermas, 1989, 27)? Or to use Arendt’s more phenomenological language, where publics can appear (Arendt, 1998)? These are vital questions, this paper suggests, not only for democratic practices but for all activities in the urban public sphere, including having a picnic, playing a guitar or simply coming together to be in public or to enjoy the local.

This paper suggests three possible approaches to protecting urban public spaces; (1) it asks what public property ownership might entail in those publicly owned spaces that are left. Is public property ownership (however defined) qualitatively different from private ownership and might this protect public spaces in ways that Low (2006) suggests? (2) Alternatively, given the extent of private, and private corporate ownership, is it time to legally disaggregate public space from property rules, creating a protective category regardless of who owns the land? Should we let the site, rather than the title documents, be determinative of public space? Or (3) if calls for urban public spaces go unheeded, are subversive enactments claiming ‘the right to city’ more productive than playing by the rules? Do we ignore property laws to engage in occupation, place-hacking, urban exploration, graffiti, guerilla gardening or flashmobs as more effective ways (particularly in more sympathetic political contexts) than trying to change the rules? These are three possibilities this paper will address in order to consider how we might protect public spaces.


Arendt, H. (1998). The Human Condition, with an introduction by Margaret CANOVAN. Trans. Margaret Canovan. Second ed. London: The U of Chicago P.

Calhoun, C. J. (Ed.). (1992). Habermas and the public sphere. MIT press.

Habermas, J. (1989). The Structural Transformation of the Public Sphere, trans. T. Burger and F. Lawrence.

Layard, A. (2010). Shopping in the public realm: a law of place. Journal of Law and Society, 37(3), 412-441.

Low, S. M. (2006). The erosion of public space and the public realm: paranoia, surveillance and privatization in New York City. City & Society, 18(1), 43-49.

Low, S., & Smith, N. (Eds.). (2013). The politics of public space. Routledge.

Madanipour, A., Knierbein, S., & Degros, A. (Eds.). (2013). Public Space and the Challenges of Urban Transformation in Europe. Routledge.

Minton, A. (2012). Ground Control: Fear and happiness in the twenty-first-century city. Penguin UK.

Mitchell, D. (2003). The right to the city: Social justice and the fight for public space. Guilford Press.

Parkinson, J. (2012). Democracy and public space: the physical sites of democratic performance. Oxford University Press.

Staeheli, L., & Mitchell, D. (2004). Spaces of public and private: locating politics. Spaces of democracy: geographical perspectives on citizenship, participation and representation, London: Sage, 147-160.


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