Space utilization confirmation
What is a space utilization confirmation?
In acquiring land to be utilized for business or non-profit purposes, a prospective land buyer would need to disclose to the government their intentions and the proposed use of the land. The government wants this information to ensure that it complies with the national, regional and district spatial plans. The prospective land buyer will be permitted to utilize the land if the proposed use of land conforms with the government's spatial plan. Previously, a Land Utilization Permit served as the document that confirmed that the proposed use of land was in line with the relevant spatial plan. However, based on the Omnibus Law, the confirmation that a land utilization is in line with the spatial plan is now in the form of a Space Utilization Confirmation.
A Space Utilization Confirmation is obtained as part of the process of obtaining a business license in the integrated electronic licensing system called the Online Single Service (OSS). Previously there was no centralized database containing all spatial plans on a national level. Instead, each spatial plan can only be accessed through the land office of the relevant jurisdiction. In order to simplify the process, all spatial plans prepared by the regional government are collated and integrated in the OSS, which can be accessed online by anyone.
Key takeaways
Some of the key takeaways from the GR on Spatial Planning are:
Three forms of space utilization confirmation
The Space Utilization Confirmation can take three different forms:
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Confirmation - If the proposed use of land is in line with the detailed spatial plan, the prospective land buyer will obtain a Space Utilization Confirmation in the form of a confirmation.
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Approval - If the regional government has yet to issue a detailed spatial plan, then the OSS will issue an approval based on the city/district spatial plan, the regional spatial plan and the national spatial plan.
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Recommendation - If the proposed use of land has not been regulated in any existing spatial plan and is deemed as "national and strategic" in nature (i.e., national parks, state borders, economic development zones, etc.), then an application is still made to the OSS, however, noting that the recommendation deals with areas of national importance, the application requires multiple additional supporting documents.
Application process
Based on the GR on Spatial Planning, a prospective land buyer will provide information in the OSS regarding, among other things, the coordinates of the land, the size of the area and information about the land ownership. The system will compare the information against the integrated spatial plans in its database and then confirm if the land may be utilized in the form of the Space Utilization Confirmation. The Space Utilization Confirmation will also contain information such as what type of land use has been approved, the building layout provisions and any other additional requirements for the use of the land. The prospective land buyer will then continue with the business license application process and the land may be used after the business license has been obtained.
Since the GR on Spatial Planning has only recently been enacted, we cannot yet confirm if the process will be as straightforward as set out in the GR on Spatial Planning. The GR on Spatial Planning also sets out that in the event that the OSS is not yet capable of issuing the Space Utilization Confirmation, then the application for Space Utilization Confirmation should be made to the Ministry of Agrarian Affairs and Spatial Planning until such a time when the OSS is capable of implementing the mechanism for issuing Space Utilization Confirmations.
Settlement of discrepancy between spatial plans, licenses and land titles
In tackling the issue regarding discrepancies between provincial spatial plans, district/city spatial plans, forest area regulations and any licenses or land titles which are not in line with any of the above, the GR on Settlement of Discrepancies sets out a series of steps to address any discrepancy between them.
In essence, the GR on Settlement of Discrepancies provides clarification for instances where any (i) provincial spatial plan, (ii) district/city spatial plan, (iii) regulations establishing a forest area, or (iv) licenses and/or land titles conflict with any of the other three documents mentioned above. In the event of such conflict, the GR on Settlement of Discrepancies specifies in detail which document will need to be revised to conform with, and make way for, the other document.
Key takeaways
Some of the key takeaways from the GR on Settlement of Discrepancies are:
Discrepancies between provincial spatial plan and district/city spatial plan
In order to deal with discrepancies between provincial spatial plans and district/city spatial plans, the provincial spatial plan will be revised at the latest 18 months after the Minister has decreed that a discrepancy exists between the Provincial and District/City Spatial Plan. All related district/city spatial plans will be simultaneously revised at the latest one year after the new provincial spatial plan has been issued. The settlement of discrepancies is conducted by a coordination board which is headed by the Minister of Agrarian Affairs and Spatial Planning.
It should be noted that the GR on Settlement of Discrepancies states that the issuance of business licenses in areas where there are discrepancies between provincial spatial plans and district/city spatial plans is temporarily suspended until the new provincial and district/city spatial plans have been issued.
Discrepancies between licenses and/or land titles and spatial plans
With regards to discrepancies between licenses and/or land titles and spatial plans, if a license/land title has been issued prior to the current spatial plan, insofar as the land has been utilized and the utilization of land does not exceed the environmental capacity of the area, the license/land title is still valid and may be extended in line with the applicable laws and regulations. If the use exceeds the environmental capacity of the area, then (i) the effective area of the license will be reduced and/or (ii) the land title will be revised to conform with the applicable spatial plan.
The above are a few samples of discrepancy settlements for specific instances and the GR on Settlement of Discrepancies goes on to regulate in extensive detail various other instances.
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