Public Land Privatization

Public Land Privatization in Europe, June 2013
PUBLIC LAND PRIVATIZATION IN

EUROPE

Legal Memorandum

June 2013


PUBLIC LAND PRIVATIZATION IN EUROPE

Executive Summary

The purpose of this memorandum is to provide an overview of European
standards governing the privatization of public lands. Public land privatization
occurs where states sell parcels of public property to private individuals and
companies. The sale of public lands to private entities has received the attention of
the media and the public in a number of states across Europe.

The European Union has no uniform standards regulating the sale or transfer
of public lands to a private party. The laws that regulate these practices are often
derived from state constitutions and legislation, which provide for government
authority to regulate how public lands are used. The roots of these laws are found
in contract and property doctrines, and are often interpreted by governments as
granting expansive power to determine the public interest. In many instances,
supporters of land privatization have argued that the public land sales better serve
the societal interests by making public spaces more productive. Critics, however,
argue that the transfer of public lands are often rooted in corruption and effectively
privatize spaces that should be preserved for expansive public use.

This memo examines recent instances of public land privatization in Croatia,
the United Kingdom, and Spain. Croatia has a history of protests to development
projects targeting public lands. However, critics fear that a recently passed law
will make it easier for the government to sell public land to private parties. In the
United Kingdom, where public land sales are largely regulated by state laws, there
exists a detailed process for projects where public lands are to be used. Large
projects have been met with strong opposition, such as the proposed project to turn
a historic garden into a privately-run urban center. The project was defeated after
public outcry. In Spain, the constitution makes specific reference to the states
capacity to regulate public lands, but provides that lands are to be preserved in a
manner that permits public use and maintains cultural heritage. Nonetheless,
privatization projects have created a substantial impact on society norms and
access to public spaces, according to various studies.

The tension between those who seek to develop lands to serve public
interests and those who wish to protect public access to common spaces has
created contentious debate in recent years in a number of states. As states continue
to develop their procedures and laws to regulate public land transfers to private
parties, efforts will likely be met with strong public scrutiny. With public lands

under state control, outside of the political process (regular elections and citizen
action), citizens may find they have little legal standing to challenge privatization
efforts. States without strong public activism and organized opposition may face
difficulties in preserving public lands in the face of large development projects.

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Sources of European Law on Public Land Privatization 1
Freedom of Contract 1
Public Law Restrictions 2

European State Practice 4
Croatia 4
Legal Framework 4
In Practice 5
The United Kingdom 6
Legal Framework 6
In Practice 9
Spain 11
Legal Framework 11
In Practice 11

Conclusion 12


1
THE PRIVATIZATION OF PUBLIC LANDS

Statement of Purpose

The purpose of this memorandum is to provide an overview of European
standards governing the privatization of public lands.

Introduction

Public land privatization occurs when states sell parcels of public property to
private individuals and companies. In Europe, the legal basis for real property
transactions lies in the universal constitutional principle of freedom of contract.
1

However, state specific public law restrictions on certain types of transactions
regulate the use and marketability of some public lands, including heritage sites,
agricultural land, and conservation zones. This memo examines recent instances of
public land privatization that have been reported in Croatia, the United Kingdom
(UK), and Spain.

Sources of European Law on Public Land Privatization

While currently there are no uniform standards governing public land
privatization in the European Union (EU) generally, most state governments derive
their ability to regulate the use and ownership of public spaces through
constitutional provisions. Where such constitutional provisions do not exist, states
may rely on preemption rights that afford governments the right of first refusal to
either acquire, maintain, or later sell designated categories of property. Local and
sub-state governments throughout Europe rely on these sources of authority to
ultimately limit the contractual freedoms of individual citizens with regard to
public property, and to authorize large-scale land privatization in the name of
societal interests.

Freedom of Contract

At the state level, the basis for real property transactions ultimately lies in
the universal principle of the freedom of contract, which exists in virtually every
European state at various levels of formality. In Spain, for instance, the principle
is guaranteed by Article 1255 of the Spanish Civil Code, which allows contracting
parties to establish covenants, terms, and conditions as they see fit, provided that

1
Real property includes land and structures on the land, such as buildings.

2
they are not contrary to law, morals, or public order.
2
Even when the freedom to
contract does not have a textual basis, European state legal practice has nonetheless
endorsed the principle. For instance, while no written provision affords
Switzerlands citizens the freedom to contract, Swiss case law has explicitly
guaranteed the right as an essential component of the principle of private
autonomy, which in turn serves as the foundation for private law, according to the
Swiss Federal Tribunal.
3
However, the freedom to create a contract for a public
land sale is not unlimited, and restrictions may apply to transactions involving
public spaces.

Public Law Restrictions

Despite the widespread acceptance of the freedom of contract, public law
restrictions on real property transactions offer potential limits to the transferability
and use of public space. Foremost, municipal or regional preemption rights may
favor government authorities over private citizens by granting the former an
immediate right to acquire special land and property before any other legal body.
For instance, Belgian law provides the Flemish government with the right of first
refusal to certain property and goods located along the ports and waterways of
Flanders.
4
Preemption rights grant the competent authority, such as the Flemish
government in the case of Belgium, a certain period of time to purchase the
disputed land in accordance to terms and conditions agreed upon in preliminary
sales contracts.

Comparably, in Poland, district authorities possess preemption rights to
historical monuments, land guaranteed for public use under the local Master Plan,
and undeveloped land either held in perpetual usufruct or previously acquired from
national or local authorities.
5
Local government in Poland is divided into three
levels: first at the regional level are provinces; second, counties/districts, which
are comprised of towns/rural communes; and finally, fundamental territorial units.
6

Similarly, Polands Agricultural Properties Agency holds an immediate preemption

2
Spanish Civil Code art. 1255, discussed in La Socit de Lgislation Compare, Guiding Principles of European
Contract Law, para. 14, available at http://www.legiscompare.fr/site-web/IMG/pdf/19._Guiding_Principles.pdf.
3
Guiding Principles of European Contract Law, LA SOCIT DE LGISLATION COMPARE, para. 16, available at
http://www.legiscompare.fr/site-web/IMG/pdf/19._Guiding_Principles.pdf.
4
Agentschap voor Geografische Informatie Vlaanderen (Agency for Geographical Information Flanders), Right of
First Refusal, http://www.agiv.be/gis/diensten/geo-vlaanderen/?catid=87.
5
Piotr Szafarz, Real Property Law Poland Report, EUROPEAN UNIVERSITY INSTITUTE, 9, available at
http://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/ResearchThemes/EuropeanPrivateLaw/
RealPropertyProject/Poland.PDF.
6
Norman Davies, Poland: Government and Society, ENCYCLOPEDIA BRITTANICA (Jun. 21, 2013), available at
http://www.britannica.com/EBchecked/topic/466681/Poland/28256/Waterways#toc28258.

3
right to the sale or transfer of agricultural lands.
7
Ultimately, preemption rights
facilitate privatization processes by granting governments the authority, as either
the property holder or as a grantor of pre-emption rights, to ensure that certain
categories of investors or purchasers are favored in the privatization processes.
8

Even when governments possess priority claims over certain types of open
spaces, public law may subject the privatization of such lands to certain
limitations. For example, in Poland, sales of public lands are only valid subject to
tender procedures.
9
In Poland, tender procedures are sets of rules between the
tender participants that guide the commission and contract award for
construction.
10
Some European states also require a special authorization for the
sale of certain property. For instance, agricultural and forested lands in Germany
and Sweden, property with historical significance in Italy, and areas with high
ecological value in Spain, all require special authorization.
11
Special authorization
depends on state law. In Greece, for example, the Ministry of Internal affairs
grants special authorization for purchases of land in borderland areas.
12

In Spain, one of the purposes of the Natural Heritage and Biodiversity Act
(42/2007) was to prevent the granting of authorizations, licenses, or concessions
permitting the use and transformation of protected areas of land, which run counter
to the laws biodiversity and conservation objectives.
13
However, despite such
regulatory limitations and prioritization of public order, as in the case of
Switzerland, several European states have decided to pursue public land

7
8
Olivier Frmond & John Nellis, The World Bank Group, Preemptive Rights and Privatization, Note # 163, PUBLIC
POLICY FOR THE PRIVATE SECTOR (1998), available at
https://openknowledge.worldbank.org/handle/10986/11512?show=full.
9
10
Elzbieta Radziszewska-Zielina, Public Procurement Procedure in Construction in Poland and Problems with its
Application, CRACOW UNIVERSITY OF TECHNOLOGY, 271 (Jun. 1, 2011), available at
http://hrcak.srce.hr/file/103612.
11
Christoph U. Schmid & Christian Hertel, Real Property Law and Procedure in the European Union (Final
Version), EUROPEAN UNIVERSITY INSTITUTE, 23 (May 31, 2005), available at
RealPropertyProject/GeneralReport.pdf.
12
Christoph U. Schmid & Christian Hertel, Real Property Law and Procedure in the European Union (Final
Version), EUROPEAN UNIVERSITY INSTITUTE, 23 (May 31, 2005), available at
RealPropertyProject/GeneralReport.pdf.
13
Natural Heritage and Biodiversity Act preamble (Spain, 2007), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/l42-2007.html.

4
privatization in spite of protests that the projects would be in contravention of
widespread public interests.

European State Practice

Croatia

The privatization of public land is actively being debated in Croatia. The
proposal of new provisions that might broaden the governments ability to transfer
public lands has caught public attention, particularly given previous efforts to halt
sales of public lands.

Legal Framework
While Article 48 of the 1990 Croatian Constitution provides for private
property ownership and the right of inheritance, it limits ownership by stipulating
that the owners and users of property must contribute to the general welfare.
14

Article 50 further extends this concept of protecting the societal interests,
providing that the exercise of entrepreneurial freedom and property rights may
exceptionally be restricted by law for the purposes of protecting the interests and
security of the Republic of Croatia, nature, the environment and public health.
15

Accordingly, Article 50 authorizes the state to restrict property rights or legally
expropriate upon compensation in the interest of the Republic of Croatia.
16

Pursuant to its constitutional authority surrounding property, on January 15,
2013, the Croatian Ministry of the Economy published a draft law on strategic
investment projects of the Republic of Croatia.
17
In particular, Article 18 of the
proposal facilitates government transfers of state-owned property, including
forests, public roads, and public water resources, to private interests for strategic
project purposes.
18

14
CROATIA CONST. art. 48 (1990).
15
16
17
Anonymous Croatia Call For Street Protests, BALKAN INSIGHT, Feb. 13, 2013, available at
http://www.balkaninsight.com/en/article/anonymous-croatia-announce-anti-privatization-protests.
18
Proposal of the Law on Strategic Investment Projects of Republic of Croatia art. 18 (Croatia, 2013), available
through the Transparency International Internet site at http://www.transparencyinternational.eu/wp-
content/uploads/2013/01/BILL-ON-STRATEGIC-INVESTMENT-PROJECTS-OF-CROATIAN-_3_.pdf.

5
In Practice
The draft law sparked calls for protest.
19
However, dissatisfaction with the
governments role in public land transfers is not new. Prior to the proposal of the
draft law on strategic investment projects, there were several protests to sales of
public lands in Croatia. In 2010 and 2011, residents in the Croatian capital of
Zagreb initiated a series of protests against the construction of a public garage and
shopping mall in the pedestrian zone of the city center.
20
In July 2010, over 1,500
activists marched on the streets and demonstrated in front of the headquarters of
Croatian Democratic Union and opposition Social Democratic Party, Croatias two
main political parties, demanding the resignation of Department of the Interior
Minister Tomislav Karamarko.
21
Led by local non-governmental organizations
like Green Action and Right of City, the demonstrations lasted several months and
called into question the legitimacy of the construction process, which opponents
claimed were corrupt.
22

The protests in Zagreb were unsuccessful at halting the heavily disputed
project.
23
During the demonstrations, public authorities defended the construction
complex by claiming it was a project of public interest and invoking the
language of the constitution.
24
The Cvjetni shopping center, which hosts popular
chain stores like multinational retail-clothing company H&M, currently sits atop a
public space formerly known as Flower Square.
25

In January 2013, protestors gathered around the parliament building in
downtown Zagreb to voice their disagreement with proposed reforms to the
strategic investment bill.
26
Protestors believed that the legislation would deprive
Croatian people of natural resources, and the government would be treating public

19
Anonymous Croatia Call For Street Protests, BALKAN INSIGHT, Feb. 13, 2013, available at
http://www.balkaninsight.com/en/article/anonymous-croatia-announce-anti-privatization-protests.
20
Activists Rally Against Zagreb Shopping mall on Opening Day, SE TIMES, April 8, 2011, available at
http://setimes.com/cocoon/setimes/xhtml/en_GB/newsbriefs/setimes/newsbriefs/2011/04/08/nb-06.
21
Protestors in Zagreb Want IM Minister to Resign, B92, July 18, 2010, available at
http://www.b92.net/eng/news/region-article.php?yyyy=2010&mm=07&dd=18&nav_id=68508
22
Activists Rally Against Zagreb Shopping mall on Opening Day, SE TIMES, April 8, 2011, available at
http://setimes.com/cocoon/setimes/xhtml/en_GB/newsbriefs/setimes/newsbriefs/2011/04/08/nb-06
23
Shopping Centers Opening Brings Together Eager Shoppers and Protesters, CROATIAN TIMES, July 4, 2011,
available at http://www.croatiantimes.com/news/General_News/2011-04-
07/18448/Shopping_center%B4s_opening_brings_together_eager_shoppers_and_protesters_
24
Protests Continue in Zagreb Against Construction, BALKAN INSIGHT, July 17, 2010, available at
http://www.balkaninsight.com/en/article/protests-continue-in-zagreb-against-construction
25
Shopping Centers Opening Brings Together Eager Shoppers and Protesters, CROATIAN TIMES, July 4, 2011,
available at http://www.croatiantimes.com/news/General_News/2011-04-
07/18448/Shopping_center%B4s_opening_brings_together_eager_shoppers_and_protesters_
26
Growing Criticism of Strategic Investment Bill, DAILY TPORTAL, Jan. 23, 2013, available at
http://daily.tportal.hr/239088/Growing-criticism-of-Strategic-Investment-Bill.html.

6
lands as their own private investments.
27
The legislation would set up a committee
to make the strategic investment decisions, and this committee would not be
susceptible to public opinion or parliament in is decision-making procedures.
28

The European Parliament (EP) met in April 2013 to discuss its concern over
the proposed strategic investment legislation, namely that the proposed strategic
investment legislation is not in line with European standards.
29
The EP
recommended that the Croatian government and parliament revise the legislation to
better protect fundamental rights, property rights, and the environment.
30
To date,
no such steps have been taken.

The United Kingdom

The UK has witnessed a growing trend of public land privatization in recent
decades. The push for privatization of public lands in the UK primarily developed
under Margaret Thatcher in the 1980s.
31

Legal Framework
While the UK does not have a single, written constitution, provisions
governing the sale and use of public lands are included in several laws and
ordinances. Compulsory Purchase Orders (CPOs), which give local councils and
other authorities legal power to purchase land without the consent of the owner,
have been particularly instrumental in facilitating the privatization of open spaces.

Under Section 19 of the Acquisition of Land Act of 1981, authorities may
enforce CPOs to authorize the purchase of any land forming part of a common,
open space or fuel or field garden allotment, subject to special parliamentary
procedure unless pursuant to approval by the Secretary of State.
32
According to
Section 19, among other conditions, the Secretary of State must be satisfied that
there has been or will be given in exchange for such land, other land, not being less
in area and being equally advantageous to the persons, if any, entitled to rights of

27
28
29
2012 Comprehensive Monitoring Report on Croatia, EUROPEAN PARLIAMENT (Apr. 13, 2013), available at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-
0183+0+DOC+XML+V0//EN.
30
2012 Comprehensive Monitoring Report on Croatia, EUROPEAN PARLIAMENT (Apr. 13, 2013), available at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2013-
0183+0+DOC+XML+V0//EN.
31
John D. Dowave, THE PRIVATIZATION DECISION: PUBLIC ENDS, PRIVATE MEANS 4 (1989).
32
Acquisition of Land Act 1981 art. 19 (England, 1981), available at http://www.legislation.gov.uk/ukpga/1981/67.

7
common or other rights, and to the public.
33
This provision implies that the users
of the commons must receive compensation in kind for the conversion of open,
publicly accessible spaces to private, limited-access facilities.

Furthermore, CPOs allow public institutions to acquire land and transfer
ownership to private parties for motorways and regeneration projects when there is
a compelling case in the public interest.
34
Under the Local Government
Planning and Land Act 1980, urban development corporations (UDCs) that acquire
land by CPO must secure the regeneration of a given area by: 1) bringing land and
buildings into effective use; 2) encouraging the development of existing and new
industry and commerce; 3) creating an attractive environment; and 4) ensuring
housing and social facilities are available to encourage people to live and work in
the area.
35

When parliament decides that there is a public interest in land, acquiring
authorities may use compulsory purchase procedures when they are unable to
purchase the land at dispute with the consent of the owner.
36
During the initial
stages of the compulsory purchase procedure, the acquiring authority must
determine how much land is required, it must contact all landowners potentially
affected by the CPO, determine the nature of the landowners property interests,
and identify any other legal interests that may be affected by the order, including
those of the owners or neighboring or adjoining properties, tenants, and
leaseholders.
37
Conversely, the landowners subjected to the CPO must keep a
detailed record of all communications with the acquiring authority, expenses
incurred, and losses sustained as a result of the order.
38
Because they are required
to mitigate their losses, landowners will only be compensated for costs arising out
of the direct and reasonable consequence[s] of the acquisition; the government

33
Acquisition of Land Act 1981 art. 19 (England, 1981), available at http://www.legislation.gov.uk/ukpga/1981/67.
34
Geoff Fisher, Compulsory Purchase Compensation: A Glimpse of Eminent Domain in the United Kingdom,
INTERNATIONAL RIGHT OF WAY ASSOCIATION, 26-27 (Sept./Oct. 2010), available at
http://www.irwaonline.org/eweb/upload/sep_web_Compulsorycompensation.pdf.
35
Urban Development Corporations, Planning Advisory Service (Aug. 24, 2013), Planning Advisory Serivce,
Urban Development Corporations (UDCs), available at http://www.pas.gov.uk/pas/core/page.do?pageId=12587
36
Compulsory Purchase and Compensation: Compulsory Purchase Procedure, DEPARTMENT FOR COMMUNITIES
AND LOCAL GOVERNMENT, 6, 9 (Oct. 2004), available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/11487/147639.pdf.
37
AND LOCAL GOVERNMENT, 10-11 (Oct. 2004), available at
38
AND LOCAL GOVERNMENT, 9 (Oct. 2004), available at

8
will not provide compensation for increased expenses incurred as a result of the
landowners own actions.
39

Before finalizing the CPO, the acquiring authority (whether government
authorities or corporations) must notify all landowners who will be directly
affected by the acquisition.
40
Additionally, the acquiring authority must publish
notices of the acquisition in one or more local newspapers and put up notices on or
near the land covered by the CPO.
41
Persons affected by the acquisition may send
formal objections other than those concerning compensation in writing to the
government department tasked with overseeing the process within a limited time
frame.
42
If there is an objection to a CPO, the government will hold a public local
inquiry,
43
which allows the public and media to observe and take part in the
proceedings if they gave notice at the beginning of the inquiry.
44

Depending on the type of acquisition, the appropriate government minister
will decide whether to confirm the CPO, confirm the CPO subject to
modifications, or deny the CPO.
45
Following the Secretary of States issuance of a
formal decision confirming the CPO, affected parties may present legal challenges
to the order in the High Court.
46

39
40
41
42
43
44
Public Local Inquiries, THE SCOTTISH GOVERNMENT, (Feb. 21, 2012), available at
http://www.scotland.gov.uk/Topics/Built-
Environment/planning/Appeals/whatwedo/otherappeals/publiclocalinquiries.
45
46

9
In Practice
A recently rejected proposal to convert Aberdeen, Scotlands historic Union
Terrace Gardens, one of the citys oldest public parks, into a privately-run urban
center created strong divides among local communities.
47
Called the City Gardens
Project, the proposed urban center square would have cost up to 140 million and
replaced the existing Victorian-era park with concrete walkways, a raised piazza, a
music hall, an arts complex, and other modern facilities.
48
Sir Ian Wood, chairman
of multinational energy services firm Wood Group and one of Scotlands
wealthiest businessmen, pledged to invest up to 50 million in the urban park,
which he claimed would give Aberdeen a vibrant new heart.
49

During a public local inquiry, also known as public consultation, held in
January 2010, the project received heavy criticism from many Aberdonian citizens,
some of which raised concerns about the projects costs in light of the poor
economic climate.
50
British singer and political activist Annie Lennox also
publicly condemned the highly divisive project, stating that the park was short-
sighted.
51
According to the popular artist, the City Gardens Project represented
the same deluded vision pursued by city planners in the UK during the 1960s,
when huge swaths of historic areas throughout the city were knocked down and
replaced with what Lennox describes as cheap, low-quality attempts at modern
architecture.
52

Opponents of the proposal also voiced concerns over the fact that the city
would have had to borrow at least 70 million to fund the project and subsequently
increase extra business rates to pay back the sizable loan.
53
Specifically, this tax
increment financing method would have entailed levying rates on new buildings
constructed in other parts of the city and utilizing that revenue towards the cost of
the park.
54
Critics claimed such a measure would have a debilitating effect in a

47
Timeline: Aberdeen's City Garden Project, BBC NEWS, Aug. 21, 2012, available at
http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-19332252.
48
Aberdeen's Divisive City Garden Project Hangs in the Balance, THE GUARDIAN, June 12, 2012, available at
http://www.guardian.co.uk/uk/2012/jun/12/aberdeen-city-garden-project?intcmp=239.
49
Tycoon in 50m City Centre Offer, BBC NEWS, Nov. 11, 2008, available at
http://news.bbc.co.uk/2/hi/uk_news/scotland/north_east/7715864.stm.
50
Views sought on new city square for Aberdeen, BBC NEWS, Jan. 11, 2010, available at
http://news.bbc.co.uk/2/hi/uk_news/scotland/north_east/8450540.stm.
51
Annie Lennox Launches Scathing Attack on Aberdeen's City Gardens Project, THE GUARDIAN, June 13, 2012,
available at http://www.guardian.co.uk/uk/2012/jun/13/annie-lennox-aberdeens-city-garden.
52
http://www.guardian.co.uk/commentisfree/2012/jun/13/why-im-against-aberdeen-city-gardens?intcmp=239
53
54
Tax Incremental Financing, THE SCOTTISH GOVERNMENT, (Feb. 1, 2013), available at
http://www.scotland.gov.uk/Topics/Government/Finance/18232/TIF.

10
city already burdened with heavy debts.
55
In late August 2012, the Aberdeen
council voted down the project during a public referendum, causing Sir Ian Wood
to withdraw his offer of funding and thereby halting the project.
56

The private management of Granary Square, a large open space in Londons
Kings Cross, has also been heavily criticized.
57
The Guardian, a major British
daily newspaper, responded to the increasing proliferation of public land
privatization by calling on online readers to help create a map of privatized public
spaces in an effort to track the scale of the trend.
58
The project, which
specifically targets open spaces, such as city squares, village greens, beaches, and
other places where theres a reasonable expectation that the space might be
public, is also aimed at better informing citizens of their rights to use public
spaces that the government has illegitimately declared private.
59

National Trust is one of the UKs largest conservation charities that protects
historic houses, gardens, forests, farmland, moors, nature preserves, and castles.
60

National Trust responds to planning applications and submits comments on
national development projects on both the local and national level.
61
While
National Trust was unable to prevent a high-speed rail though England and
Scotland, it is working with the government to mitigate the impact of the rail on
gardens, parks, and protected buildings.
62

55
56
Union Terrace Gardens: 'Aberdeen Saved from Certain Financial Embarrassment,' THE GUARDIAN, Aug. 27,
2012, available at http://www.guardian.co.uk/uk/scotland-blog/2012/aug/27/scotland-northern-ireland-extra-
architecture.
57
Public Spaces in Britain's Cities Fall into Private Hands, THE GUARDIAN, June 11, 2012, available at
http://www.guardian.co.uk/uk/2012/jun/11/granary-square-privately-owned-public-space.
58
Privately Owned Public Space: Where Are They and Who Owns Them?, THE GUARDIAN, June 11, 2012, available
at http://www.guardian.co.uk/news/datablog/2012/jun/11/privately-owned-public-space-map; see also
https://maps.google.com/maps?f=q&source=embed&hl=en&geocode=&q=http:%2F%2Fs3-eu-west-
1.amazonaws.com%2Fn0tice-static%2Fkml%2Fpublic-private.kml&aq=&sll=37.0625,-
95.677068&sspn=57.292148,114.169922&ie=UTF8&t=m&ll=53.357109,-3.603516&spn=6.29719,14.0625&z=6.
59
Privately Owned Public Space: Where Are They and Who Owns Them?, THE GUARDIAN, June 11, 2012, available
at http://www.guardian.co.uk/news/datablog/2012/jun/11/privately-owned-public-space-map.
60
What We Protect, National Trust (Jun. 9, 2013), available at http://www.nationaltrust.org.uk/what-we-do/what-
we-protect/.
61
Land Use & Planning: What We Are Doing, National Trust (Jun. 9, 2013), available
http://www.nationaltrust.org.uk/what-we-do/big-issues/land-use-and-planning/what-we-are-doing/.
62
Transport & Tourism: High Speed Rail 2, National Trust (Jun. 9, 2013), available at
http://www.nationaltrust.org.uk/what-we-do/big-issues/transport-and-tourism/.

11
Spain

While the Constitution provides for expansive use of public lands by the
public and cultural heritage through preservation, studies show that the privatizaion
of public lands in Spain is having a notable impact on society and general land
usage.

Legal Framework
Article 132 of the 1978 Spanish Constitution specifically addresses the
states powers with regard to the regulation of public property.
63
According to the
provision, the law shall regulate the legal regime of the property in the public
domain and community property, based on the principle of inalienability,
imprescriptibility, non-seizure, and unencumbrance.
64
Related to Article 132,
Article 46 seeks to protect the states national heritage by requiring public
authorities to guarantee the preservation and promote the enrichment of the
Spanish peoples historical, cultural, and artistic heritage.
65
This latter article
arguably applies to public, open spaces, such as parks and historic town centers.

In Practice
Certain observers assert that, in parts of Spain, the commodification of urban
open spaces in the form of retail shopping centers and gated communities has led
to social exclusion in the public realm.
66
Studies claim that such privatization
processes tend to restrict ethnic minority and migrant communities access to
formerly public lands, privileging customers and consumers while ultimately
excluding the spaces poorer users.
67
Often, the installation of actual physical
barriers, such as fences, further perpetuates the overall sense of social isolation.
68

For instance, social advocacy groups like the Project for Public Spaces have
called Barcelonas Parc Diagonal del Mar an urban development disaster,
placing the fenced-off development complex at the top of its Worst Parks list.
69

63
SPAIN CONST. art. 132 (1978).
64
65
66
Sue Bagwell, Public Space Management: Report to the Intercultural Cities Research Programme, CITIES
INSTITUTE, 7 (Sept. 2012), available at
http://www.coe.int/t/dg4/cultureheritage/culture/cities/ICCFinalReportv2_en.pdf.
67
Diagonal Mar A Gated Community, BARCELONA FIELD STUDIES CENTRE (Jun. 8, 2013), available at
http://geographyfieldwork.com/GatedCommunities.htm.
68
69
Hall of Shame: Diagonal Mar, PROJECT FOR PUBLIC SPACES (Jun. 9, 2013), available at
http://www.pps.org/great_public_spaces/one?public_place_id=623.

12
Critics claim that Diagonal Mar, which encompasses a 35-acre park, multiple
lakes, pedestrian paths, and biking trails, is effectively a gated community whose
exclusive nature has created distrust amongst neighboring communities.
70

According to studies, gating public spaces, like in the case of Diagonal Mar, tends
to restrict the poorest social classes access to such spaces and creates social
paranoia by reducing community interaction and promoting a security-oriented
lifestyle, thereby creating a sense of distrust between those residing within and
those living outside the barriers.
71

Some studies suggest that one source of public land privatization in Spain
was the real estate bubble that occurred between 1985 and 2008. According to the
Centre for Research on Globalization (CRG), a Montreal-based non-profit, much
of the illegal side-payments made to some of Spains leading politicians appear to
have been funded by money originating from the construction sector.
72
The CRG
speculates that politicians took bribes from private investors during the real estate
bubble, allowing them to circumvent construction regulations and develop on
protected public lands, including Spains pristine shorelines.
73
Due to the bursting
of the real estate bubble and the subsequent national debt crisis, many of the
thousands of building projects scattered throughout Spain have been abandoned,
leaving the landscape dotted with virtually uninhabited ghost towns.
74

Conclusion

Several European states derive authority to sell and control the use of
commons and public spaces either through explicit constitutional provisions or
legally delegated preemption rights. While the privatization of public spaces in
many states is typically authorized only in pursuit of societal interests, several
governments have interpreted this condition loosely to endorse the conversion of
formerly open, publicly utilized spaces to limited-access, private sites and

70
Hall of Shame: Diagonal Mar, PROJECT FOR PUBLIC SPACES (Jun. 9, 2013), available at
http://www.pps.org/great_public_spaces/one?public_place_id=623.
71
72
Jrme Roos, Denouncing Austerity: Mass Demonstrations against Financial Coup in Spain, GLOBAL RESEARCH
(Feb. 24, 2013), available at http://www.globalresearch.ca/denouncing-austerity-mass-demonstrations-against-
financial-coup-in-spain/5324290?utm_source=rss&utm_medium=rss&utm_campaign=denouncing-austerity-mass-
demonstrations-against-financial-coup-in-spain.
73
Jrme Roos, Denouncing Austerity: Mass Demonstrations against Financial Coup in Spain, GLOBAL RESEARCH
(Feb. 24, 2013), available at http://www.globalresearch.ca/denouncing-austerity-mass-demonstrations-against-
financial-coup-in-spain/5324290?utm_source=rss&utm_medium=rss&utm_campaign=denouncing-austerity-mass-
demonstrations-against-financial-coup-in-spain.
74
Newly Built Ghost Towns Haunt Banks in Spain, NEW YORK TIMES, Dec. 17, 2010, available at
http://www.nytimes.com/2010/12/18/world/europe/18spain.html?pagewanted=1&_r=1&partner=rss&emc=rss.

13
facilities. In various states throughout Europe, such public land privatization has
been met with fierce public opposition, which has called into question the legal
processes authorizing them.

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