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 (underground infrastructure)?
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 Indonesian Valuation Standard (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.
- 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.”
- 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.
- 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.
Asti Widyahari
Property Valuer & Consultant