POLICY PAPER: CUT-AND-FILL ON THE BUARA–KUBANGSARI MAIN ROAD, INDUSTRIAL ZONE IN KETANGGUNGAN SUBDISTRICT, BREBES REGENCY GOVERNMENT, By: Research Team, Faculty of Law, UGM

One of the state’s objectives is to ensure the well-being of all its citizens. In line with the concept of the welfare state, this concept assigns the government the duty to provide for the well-being of its people—bestuurszoorg (public welfare)—with the consequence that the government has the authority to intervene (staatsbemoeienis) in all aspects of society.

Under the law, the public interest refers to activities concerning the interests of the nation and the state, the broader community, the general public, and/or development interests, including activities of the central and local governments within the scope of friendly relations between a state or region and other states or international communities and institutions.

Before the Brebes Regional Government carries out the cut-and-fill process on the Buara-Kubangsari Main Road in the Industrial Designated Area (KPI), several steps must be completed, namely:

1. Program and Budget Development, in synergy with the transportation and logistics systems and must be based on regional spatial planning;
2. Technical Planning, including design speed, road width, capacity, access roads, at-grade intersections, ancillary structures, road furnishings, road use in accordance with its function, and continuity;
3. Land Acquisition, which in the present case is essentially unnecessary because the land has already been transferred to the local government through a grant;
4. Construction;
5. Road Operation; and/or
6. Road Maintenance.

During the construction process, particularly during the cut and fill process on the Buara–Kubangsari Main Road in the Industrial Zone (KPI) of Ketanggungan Subdistrict, Brebes Regency, several permits must be obtained, namely: the following:

1. Approval of Compliance with Land Use Activities (PKKPR);
2. Environmental Permit (AMDAL/UKL-UPL);
3. Permit for the Management and Utilization of Excavated Materials;
4. Road Use Permit;
5. Permit for Surface Water Use

In principle, all of the above provisions must be observed, unless the exercise of discretion is intended (see the Government Administration Law / UUAP), provided that:

1. it is consistent with the purposes of discretion, namely: a. facilitating the administration of government; b. filling legal gaps; c. providing legal certainty; and d. overcoming governmental stagnation under certain circumstances for the public benefit and interest.

1. it is in accordance with the General Principles of Good Governance;
2. it is based on objective reasons;
3. it does not give rise to a conflict of interest; and
4. it is exercised in good faith.

As for the funding schemes that the Brebes Regency Government may use to carry out cut-and-fill operations—if the funding comes from the private sector—this will depend on the road category that will be designated for the land where the cut-and-fill is performed. If the road is designated as a public road, a grant scheme may be used, whether in the form of a service grant or a monetary grant. If the road is designated as a special-use road, the Brebes Regency Government may enter into an Infrastructure Provision Partnership with a private legal entity that will subsequently use the road facilities.

¹ Prof. Dr. Nurhasan Ismail, S.H., M.Si.; Annisa Syaufika Yustisia R., S.H., M.H.; dan Hendry Julian Noor, S.H., M.Kn.