“From Plazas To Parkland” - Ontario’s Bill 23 and the Evolution of Privately Owned Public Spaces

  • June 23, 2023
  • Alexander J. Suriano, Aird & Berlis LLP

Introduction

Public open space is a central feature of our cities and urban environments.  It forms an essential part of the urban fabric that ties together the various private uses – residences, offices, commercial and recreational amenities, etc. – and provides room for recreation and civic engagement to citizens of our metropolises.  Cities need open spaces that offer residents, as well as visitors, places for retreat, relaxation, and recreation; places where civic life and social engagement can take place. Like other features of our planned environments, public spaces are created and regulated through land use planning legislation, policies, and zoning.

However, as the downtowns of cities become increasingly dense due to new development, the traditional source of urban open space – the publicly owned network of parks and squares – cannot adequately provide the type of recreational amenities inhabitants of growing cities need.  Similarly, the municipalities’ ability to acquire new open space and parkland by acquisition or purchase is progressively difficult to achieve as a result of the growing unavailability of appropriate undeveloped sites and the rising cost of land in Canada’s major cities.  To address this deficit, local governments have increasingly turned to the use of privately owned public spaces (frequently called “POPS”). 

While they are used widely, and even more so recently, there is no universal definition for POPS.  Rather, each jurisdiction will have its own approach and legal framework for privately owned spaces that are open to the public. Looking at these spaces generally, there are three definable characteristics that they share, specifically that they are:

            (a) Open or landscaped space;

            (b) Privately owned and maintained; and

            (c) Legally required to be open and accessible to the public for general use.

Ontario municipalities, as well as various major Canadian cities, frequently use POPS as a tool of density bonusing, either expressly regulated through zoning or negotiated as part of a package of incentives provided to the municipality by a landowner in exchange for additional height and density permissions.  However, recent amendments to the Ontario Planning Act[1] as part of the Provincial government’s Bill 23, More Homes Built Faster Act, 2022[2] (“Bill 23”), will change the use of POPS from a public realm issue and density bonusing tool to a legislatively recognized substitute for publicly owned parkland.