Law No. 2 In 2012 explain that
the object of compensation in land acquisition for public interest is the land,
the space above ground and below ground level, buildings, plants, objects
related to the land, and/or other damages that could be appraised (Article 33).
Then, what about the valuation of land acquisition for public interest that is
entirely below ground level?
Case Study:
A plan for land acquisition for
the construction gas/water pipeline at a depth of 20-80 m below ground level.
Gas/water pipeline construction will be done with the drilling machine as
subway construction in Jakarta (silent construction). Type of land use of the
surface above the gas/water pipeline is dominated by farmland and vacant land.
Question: is the owner of the surface land getting compensation under Law No.
2/2012 and SPI 306 on the Valuation of Compensation for Public Interest?
Explanation:
Before answering this question, there
are some things that need to be analyzed first.
1. Space Below the Ground Level
and The Principle of Horizontal Separation.
Related to space below the ground
level, Presidential Decree No. 17 of 2012 (Article 1, paragraph 22) states
space above ground and below the ground level is an available space below the
earth's surface and/or the space available above the earth's surface than is
necessary for the purposes directly related to land use.
Currently there are no specific
rules for the use of space below the ground level. However, discussion of this
at least on the Basic Agrarian Law/BAL (Undang-Undang Pokok Agraria/UUPA). In
this case, it is important to know about the principle of Horizontal Separation
adopted by Indonesia.
The principle of horizontal
separation is only of land surface so that any inherent or stand on it and what
is contained in it is not a single entity but separate forms. Therefore, apart
from the land of the objects that are on the land, so that landowners of land
and buildings located on it can be different.
Related to the authority land
rights granting, land rights only to the extent of its surface, while building
or anything inherent in the ground will be different with the land ownership
rights. This opens the possibility that the individual who is the owner of the
objects that stick in the ground is different from the individual who holds the
rights to the land. Thus, there are terms of the primary and secondary rights.
Primary rights include ownership and rights of control by the state. The
secondary rights include rights management (HPL), the right to use (HP), the
right to build (HGB), land rights (HGU), and so on.
Horizontal separation principle
contained in the UUPA Article 4 (2):
"The rights of the land
referred to in paragraph (1) of this section authorizes the use of the land
concerned, likewise the land and water as well as the space available on it,
just needed to direct interests related to the use of land within the
boundaries according to this law and other higher legal regulations."
2. Land Rights
Land ownership is only on the
surface, while what is under the ground just right of use. In real property
concept, land use rights are up to the bowels of the earth.
3. Analysis of Land Acquisition
Below the Ground Level
The question to answer this is:
are there any influence to the landowner if the underground infrastructure
development begins?
Example: For the construction of
underground infrastructure, subway example, a significant disadvantage is for
commercial area with high floor coefficient. When the infrastructure
underground built in less than 10 meters depth, the landowner cannot build
high-rise buildings (limitation on foundation and building basements).
In this case, stating that the
basement will be used is as deep as 20-80 meters below ground level. It is
necessary to analyze the influence for the owner of the land surface of
agricultural land and barren land of gas pipeline/water development.
Therefore, it is important to
know the potential economic benefits that are missing from the utilization of
underground area, which became the replacement value of the loss. So the answer
to the above case is yes and no, depending on the potential economic benefits.
It should be noted that for oil
crops and rubber, construction of underground infrastructure would have an
adverse effect on the development of the plant.
Regards,
Ni Luh Asti Widyahari
Valuer and Property Consultant
asti@mbpru.com
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