Ca junks petitions versus SM expansion project

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BAGUIO CITY – The Special 9th Division of the Court of Appeals (CA) junked on appeal a battery of petitions against the multi-billion expansion project of SM City Baguio for the failure of the petitioners to exhaust administrative remedies within the administrative machinery before the court’s judicial power can be sought.

In a 31-page decision promulgated on 12 December 2014, Associate Justices, Magdangal M. de Leon, Stephen C. Cruz and Zenaida P. Galapate-Laguilles cited the petitioners who are considered a party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief but also pursue it to its appropriate conclusion before seeking judicial intervention in order to give the administrative agency an opportunity to decide the matter itself correctly and prevent unnecessary and premature result to the court.

The appeal stemmed from a decision dated 03 December 2012 of the Regional Trial Court (RTC) Branch 5 of Baguio City which dismissed the complaints dated 23 February 2012 and 13 April 2012 and the amended urgent petition to cite SM Prime Holdings for contempt dated 20 April 2012 and the lifting of the Temporary Environmental Protection Order (TEPO) dated 10 April 2012.

The battery of petitions originated on the plan of SM City Baguio to undertake an expansion of its existing mall at the Luneta Hill which entails the earthballing or cutting of 182 pine and alnus trees  that were earlier given the necessary Environmental Compliance Certificate (ECC), tree cutting, earthballing and even building permits by the concerned agencies and local government.

“In this case, certain facts need to be resolved first, to determine whether the issuance of the amended ECC, the tree cutting and earthballing permits and the building permit is patently illegal act. In determining the legality of such issuance, as correctly ruled by the trial court, detailed determination of facts are needed to prove compliance or non-compliance with the legal and procedural requirements leading to the issuance of the permits. Indeed, under the doctrine of primary jurisdiction, courts must refraim from determining a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to its resolution by the latter, where the question demands the exercise of sound administrative discretion requiring the special knowledge,” the decision stressed.

The CA cited in the said case, the presumption of regularity remains unrebutted as the appellants failed to present clear and convincing evidence to the contrary, to show that issuance of the amended ECC, the building permit and the tree cutting permit and earthballing permit were tainted with irregularity.

“We cannot subscribe to the appellants’ postulation. The fact that the extent of the expansion project will exceed the size or area of the originally constructed SM Pines Resort Project does not convert the project to a new one. The nature of the project, not its area or size, determines whether the project is a new one or a mere continuation or improvement of the original project,” the CA added.

On the contention of the appellants’ that the project must have undergone public consultations, the CA ruled that the project was initiated by a private entity over its private property which does not require such consultations.

On the allegation of the appellants’ that the issuance of the building permit was questionable, the CA cited other than their bare allegations, they failed to show proof as to SM City Baguio’s non-compliance with the necessary requirements.

The decision stated pointed out the appellants’ are questioning the issuance of the building permit due to alleged violation of a zoning ordinance, and not due to a violation of any related environmental law or regulation.

The CA affirmed the appellants’ have no basis to claim that the tree cutting and earthballing permit should be accompanied by a separate ECC considering that the permit itself, which was duly issued by the DENR, is in reality a compliance with one of the conditions set forth in the amended ECC.

“It would be superfluous to obtain a separate ECC for the tree cutting and earthballing of trees when such activity is but a necessary consequence in the implementation of the expansion project. Besides, trees were already cut during the construction of SM Baguio pursuant to the original project and no separate ECC was shown to have been obtained,” the decision said.

The CA noted that the trial court granted the application for the issuance of a TEPO in order not to make any resolution of the case moot, and not because it found appellants’ evidence stronger than that that of appellees and it found that the trial court’s findings are supported by evidence.

The CA commended the numerous appellants for their courages efforts to safeguard and maintain the ecological balance of Baguio City and it recognizes the utmost importance of protecting the environment.

By Dexter A. See

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