On 22 May, the Law on Management and Protection of Public Spaces (Law N° 31199 ̶ "Law"), was passed. This Law is the result of two bills presented in 2018, and its main purpose is to improve management and ensure collective use of public spaces.
The Regulation of Territorial Conditioning and Sustainable Urban Development[1] has already defined "public spaces" as those spaces free of buildings, inside or in the immediate surroundings of population centers, which allow structuring and articulation, mobility of people and goods, integration and social interaction, recreation of the people, facilitation of networking infrastructure services, and the regulation of the environmental factors. By population center, it refers to both rural and urban territory.
An innovation of the Law is that it limits the definition of "public spaces" to urban areas. It states in its Articles 3° and 4° that public spaces are located in the city and that they are destined by their nature, use or affectation, to the satisfaction of collective urban needs (such as rest, recreation, cultural expression, social exchange, entertainment and mobility).
A second point is the nature of public spaces. The Law reiterates that they constitute public domain property, and are therefore inalienable, imprescriptible and non-seizable. On these, the state exercises its administrative, regulatory and guardianship powers in accordance with the law. In this sense, public spaces are areas for active or passive public recreation, streets, coastal beaches, squares, parks, green areas, sports complexes, protection areas and all those defined as such by the authority. In this way, the nature of public spaces as a public domain has been reiterated, leaving out categories such as public-private space and/or private property for public use.
However, the question about green areas arises, since Article 4 of the Law states that those of public use and public domain are also intangible. Coastal beaches, for their part, will continue to be subject to the special rules on beaches but will abide to this Law with regard to the use of them as public spaces (which does not qualify as intangible).
However, the Law provides that authorizations may be granted for the use of public spaces, which may not distort public use or restrict citizens' free access and enjoyment. The resources raised are destined to its maintenance, improvement and promotion of public spaces. Similarly, authorizations may be granted for billboards and advertisements that, as far as possible, do not hinder the use or visibility of public space or break the harmony of the urban landscape. The municipal regulation must regulate these aspects in a reasonable manner, which undoubtedly leaves wide discretion when defining which billboards and advertisements could generate visual pollution, when the municipal competences on this matter, to date, had been limited to the regulation of the support of the billboards or advertising and not to their content or design.
Another interesting novelty of Law No. 31199 is that it specifies that the participation of private investment may not exceed 15% of the total area of public space. In cases where administrative responsibility is established for the commission of very serious infractions, as established by the regulations of this law, the right granted may be declared to be extinguished.
On the other hand, it is specified that the disaffection of a public space as a good of public domain is exceptional and occurs on the basis of the application of strict criteria, such as public health, public safety, natural disaster risk management, restructuring, adaptation or urban renewal projects, which involve modifications in the existing urban structure. As a novelty, it is worth mentioning that it has been anticipated that in the case of disaffection of a public space, the entity must implement the mandatory replacement of a new public space that is equivalent in terms of environmental, cultural and/or recreational values similar to the area that is disaffected, in addition to the equivalence in terms of area, surface or underground, with similar features in another part of the same district. Thus, the new public space must contain the legal and technical feasibility so that it can be used by citizens without major restrictions and in quality conditions.
With respect to public spaces that had been occupied by a third party, the Law provides that it shall apply the recovery settlement as set forth in the Law No. 30230, which provides tax measures, simplification of procedures and permits for the promotion and boosting of investment in the country for the immediate recovery of the space and its return to public use.
In the event that an entity detects an improper registration of the property in the public domain arising from special regulations that gave merit to the same, it must inform the National Superintendency of State Assets (SBN in Spanish) in order to clarify, rectify or recover the ownership of the same.
In general, the Law states that any administrative act on public spaces must be communicated to the SBN and the Office of the Comptroller General of the Republic within 10 business days from the conclusion of the contract.
Finally, it should be noted that the Law establishes a series of obligations and duties of citizens, as well as a list of infractions and sanctions when attacks against public spaces are verified.
The Regulations of this Law must be approved in the following 60 business days.
[1] Approved by Supreme Decree No. 022-2016-HOUSING.
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