Tuesday, May 08, 2007 High court ruling imperils efforts to conserve Cebu river
A RECENT decision from the Supreme Court (SC) may have unwittingly jeopardized the outcome of river conservation efforts in Cebu City.
While the ruling only intended to resolve the civil case filed by Doris Chiongbian-Oliva for a reduction in the 40-meter easement setup to protect a river that runs inside her private property, the SC took judicial notice of the land use classification of the entire Cebu City and said the easement set for all lands in urban areas is only three meters.
“The City of Cebu was created on Oct. 20, 1934 under Commonwealth Act 58. It is a highly urbanized city classified as entirely urban,” the High Court said in the decision penned by Associate Justice Leonardo Quisumbing for the Third Division.
Cebu City has one major river system—the Guadalupe River—which spans the entire city and divides it into its existing northern and southern districts.
There are existing conservation efforts for the river, starting with the creation of the Cebu City Rivers Commission.
Serious degradation
A paper prepared by Fr. Margarito Alingasa of the Cebu Uniting for Sustainable Water Foundation (CUSWF) described the Guadalupe River as under “serious degradation,” particularly in its inner congested urban portion.
The paper describes the river as having been narrowed by bank reclamation and outright building of houses over the embankments and edge of the river bed by informal settlers.
On the headwater portion, Alingasa said, erosion due to improper farming and deforestation is the main problem.
Oliva owns a large piece of property in Talamban, Cebu City.
She has a transfer certificate of title that originated from the original certificate of title from a free patent granted in September 1969 under Commonwealth Act 141.
The free patent provided a condition—that rivers within the covered area must have a 40-meter buffer zone.
She wanted the buffer zone reduced to merely three meters and, in October 2001, filed a civil suit before the Regional Trial Court (RTC).
There, she argued that the property has been classified as a residential lot and, pursuant to Administrative Order 99-21, the buffer zone should only be three meters from the actual bank.
Oliva said she only has 1,000 square meters of property to call her own and a 40-meter easement would deprive her of much of it.
The Department of Environment and Natural Resources (DENR), which was the respondent in the civil suit, countered by saying that the provisions of the free patent was the law that the government should follow on how wide the easement ought to be and maintained that the buffer zone is inalienable and indisposable.
The RTC ruled in favor of Oliva and said there is no longer any reason for the 40-meter legal easement because the property has been transformed into residential land and the area where it is located has been reclassified as urban.
DENR questioned the ruling before the Court of Appeals (CA), which then issued a reversal.
DENR claim
It upheld the DENR’s claim that the property was inalienable and that the declaration of the property as residential in the tax declaration and reclassification of the area where it is located as urban were insufficient bases to reclassify the property.
Quisumbing, in reversing the CA’s ruling, noted that section 2.1.a of Administrative Order 99-21 said all alienable and disposable lands of the public domain must have “a strip of 40 meters wide starting from the banks on each side of any river or stream that may be found on the land shall be demarcated and preserved as permanent timberland.”
But, he said, administratively titled lands follow a different set of rules in section 2.3.1 wherein “when these lands are to be subdivided, consolidated or consolidated-subdivided, the strip of three meters, which falls within urban areas shall be demarcated and marked on the plan for easement and bank protection.”
The ruling granted Oliva is a reduction in the mandatory easement from 40 to three meters. (KNR)
