Republic of the Philippines

Province of Surigao del Sur

CITY OF BISLIG
Telephone: (086) 853-6089 loc. 112, 114, 853-2999, fax: 853-5466
Website: www.bislig.gov.ph, Email : garayflorencio45@gmail.com
Office of the City Mayor

TO: ALL MEMBERS

Tinuy-an Falls Protected Landscape (TFPL)
Protected Area Management Board (PAMB)

POSITION PAPER

In re: Demolition of Illegal Structures within 500-meter distance from the Tinuy-an
Waterfalls

PREFATORY STATEMENT

Pursuant to Section 5 (a.1) of Republic Act No. 11038 also known as the
Expanded National Integrated Protected Area System Act of 2018, Tinuy-an Falls has
been declared as one of the protected areas of the country. As the law declares, Tinuy-
an Falls has to be protected by the government and its concerned agencies. However,
despite our efforts to protect the area, illegal activities are still present which requires
prompt solution.

Armed with the most radical piece of legislation, the Local Government Code of
1991, and the National Building Code, the undersigned is constrained to enforce the law
after personally witnessing the glaring traces of evidences of illegal destructions and
constructions within the vicinity of the famous and majestic Tinuy-an Falls.

The stand of the city is to implement the law for the general welfare of the
people.

The undersigned, therefore, seeks for the demolition of all illegal structures
within the 500-meter distance from the Tinuy-an Waterfall.

ANTECEDENT FACTS AND CIRCUMSTANCES

This pertains to the decision made during the joint meeting duly called pursuant
to Memorandum Order No. 2020-323 1. It was held last August 6, 2020 at the City
Mayor’s Conference room with the subject Tinuy-an Falls concern and was attended by
representatives from DENR-CENRO and concerned Department Heads and
representatives of LGU-Bislig City2.

At the said meeting it was established that Tinuy-an Falls was declared as
protected area thru a legislation dated last June 2018 with an area of 4, 320 hectares
1
A machine copy of the Memorandum Order No.202323 is hereto attached and marked as Annex “A”.
2
A machine copy of the attendance is hereto attached and marked as Annex “B”

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under the ENIPAS Act of RA 11038. The CENRO received reports on the month of
February 2019 on illegal kaingin. The technical team of CENRO Bislig found out that
there were existing kaingin activities. More shocking discovery was the presence of
existing establishments on the protected area which includes six (6) cottages, one (1)
CR, poultry and fishpond.

Further, the representative of the City Planning and Development Officer

commented that when it comes to the structures, no clearance was issued by their
office allowing the building of these structures. In addition, no permits were secured
like zoning clearance, barangay clearance, building permit and other clearances needed.

The representative of the City Legal Office then commented to revisit Section
455 of the Local Government regarding the authority of the City Mayor to issue
demolition order in case of illegal structures.

Now, the very controversial question is, why is there no report on the part of the
Tinuy-an Management as to the creation of the illegal structures and why these
structures were allowed to be constructed when the area is a protected area. Hence,
this position paper.

ISSUES

1. Whether or not the structures were illegal per se.

2. Whether or not demolition of all illegal private structures is proper.
3. Who has the jurisdiction to demolish the said illegal structures.

DISCUSSIONS AND/OR ARGUMENTS

DEMOLITION OF ALL ILLEGAL

STRUCTURES WITHIN the 500-METER
DISTANCE FROM TINUY-AN WATERFALL
AS PROTECTED AREA AND A
TIMBERLAND IS PROPER; LAWS
GOVERNING ILLEGAL STRUCTURES DO
NOT DISTINGUISH
A PROTECTED AREA OR NOT.

Based on the confirmations by the City Planning and Development Office, City
Assessors Office and the City Economic Enterprise and Development Office during the
meeting, it is crystal clear that the existing private structures near the Tinuy-an
Waterfalls were constructed without the necessary government permits. This was
further corroborated by For. Saburnido when he stated that these illegal constructions
were reported by the him during the 1st PAMB meeting and subsequently during the 1 st
Tinuy-an Management Board meeting. Hence, it cannot be denied that these privately-
owned structures violated our existing laws on building and business permits. To note,
the law governing illegal structures does not distinguish whether or not the subject lot
is a protected area or not.

Regrettably, since the Local Government Unit of Bislig thru the PAMB is yet to
formulate its Tinuy-an Management Plan and that there is no existing ordinance
governing illegal structures within the City, it is deemed proper to cite the National
Building Code and the Local Government Code as the main sources of laws governing
illegal structures in the absence of local law on this matter.

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 Pertinent provisions of the National Building Code are as follows:

1. Sec. 301 of PD 1096 which lays down the requirement of building permits
specifically provides:

“Section 301. Building Permits. No person, firm or corporation,

including any agency or instrumentality of the government shall
erect, construct, alter, repair, move, convert or demolish any
building or structure or cause the same to be done without first
obtaining a building permit therefor from the Building Official
assigned in the place where the subject building is located or the
building work is to be done.” (Underscoring and emphases supplied)

Hence, the law is clear that all persons, whether IPs or not, are mandated to
obtain a building permit prior to the construction. Absence of which will solely justify
the demolition of the same.

In contrast to demolition, Sections 13 and 22 of the IRR of RA 11038 also known

as the “National Integrated Protected Area System Act” were raised as contentions that
the ancestral domains, customary rights of the IPs as well as existing rights, whether
government or private must be respected. These provisions of law specifically provide
as follows:

“Section 13. Ancestral Domains and Customary Rights. Ancestral

domains and customary rights shall be accorded due recognition.

As part of heritage preservation and pursuant to the need to

conserve biologically significant areas, the territories and areas occupied
and conserve for and by IPs and communities shall be recognized,
respected, developed and promoted.

Xxxxxxxxxx” (Emphasis supplied)

“Section 22. Existing Rights. All property and private rights within
the protected area must be respected and its buffer zones
already existing and/or vested upon the effectivity of this Act
shall be protected and respected in accordance with existing
laws: Provided the exercise of such property and private rights
shall be harmonized as far as practicable, with the provisions of
this Act. Notwithstanding this Act, all existing rights, contracts,
agreements entered into by the government for the utilization of natural
resources within protected areas shall continue to be recognized and
governed by Philippine Laws.
xxxxxx xx

The occupation of LGUs and communities within the protected area

shall be respected. Within 90 days from the creation of PAMB, the
board shall assess the physical occupation of said LGUs and communities
within protected areas and recommend to proper authorities measures to

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 ensure the protection of their well-being. Municipalities and cities with
existing townships and town centers within the protected area shall
continue to occupy such townships and town centers: Provided that in
the development of their CLUPs and barangay development
plans, due consideration shall be given to the intended use for
conservation and biodiversity as well as the objectives for
protected areas to keep human habitation and environmental
conservation in harmony.”

Clearly, the existing rights of the IPs is not absolute and, therefore, do not
excuse them from complying the necessary permits. Similarly, as enunciated in the
famous Boracay West Coves’ case, 3forestland, although under the management of
the DENR, are not exempt from the territorial application of municipal laws, for local
government units legitimately exercise their powers of government over their defined
territorial jurisdiction.

Germane to this provision is Rule 22.2 of IRR of RA 11038 which specifically

provides:

“Section 22.2 xxxxxx A property or private right is deemed to be

existing, or to have vested, when it has become fixed and
established and is no longer open to doubt or controversy.
(Underscoring and emphasis supplied)

As clearly stated, the following requisites must be present in order that such
property or private right is considered worthy of recognition under this law, to wit:
1. The property or private right must be existing or have been vested;
2. Such property or private right must be fixed and established; and
3. Such property or private right is no longer open to doubt or controversy.

Noteworthy to mention, it is of public knowledge that properties in question and

the claim of property or private rights over the subject land cast doubts among the
constituents. As a matter of fact, the MATRICOSO claimed to be the owner of the
cottages and other structures yet they failed to establish proof of ownership over the
said facilities.

Considering that until now the ownership of the cottages and other illegal
structures casts doubts and remains a controversy. Absence of this last requisite
renders such property or private rights unworthy of full recognition.

Additionally, with this provision of the National Building Code on building permits
as against the existing rights under the IRR of the RA 11038, we find no conflict
between these laws.

Corollarily, we still find in this case that the LGU may nevertheless properly order
the demolition of all illegal structures near the Tinuy-an waterfall upon observance of
due process. This is because, in the exercise of police power and the general welfare

3
Crisostomo vs. Municipality of Malay, Aklan, G.R. No. 211356, September 29, 2014.

Page | 4
clause,4property rights of individuals may be subjected to restraints and burdens in
order to fulfill the objectives of the government. Otherwise stated, the government may
enact legislation that may interfere with personal liberty, property, lawful businesses
and occupations to promote the general welfare.5

2. Section 302 of PD 1096 specifically provides:

“Section 302. Application for permits.

In order to obtain a building permit, the applicant shall file an

application therefor in writing and on the prescribed form from the
office of the Building Official. Every application shall provide at
least the following information:
(1) A description of the work to be covered by the permit applied for;
(2) Certified true copy of the TCT covering the lot on which the
proposed work is to be done. If the applicant is not the
registered owner, in addition to the TCT, a copy of the contract
of lease shall be submitted;
(3) The use or occupancy for which the proposal work is intended;
(4) Estimated cost of the proposed work. (Underscoring and emphases
supplied)

Per information from the City Assessor Office and City Planning and
Development Office and CEEDO there is no record as to the claimant of the
controversial illegal structures near the Tinuy-an water falls. The law mandates to
require every application to provide these necessary information, stating among
others, the ownership of the lot and/or contract of lease. Undoubtedly, this seems to
be impossible to happen since the land in controversy is timberland and more so
when the same was declared as a protected area. Hence, it can never be acquired by
any private individual even by way of prescription.

In the enforcement of the National Building Code, the LGC authorizes city and
municipal governments, acting through their local chief executives, to issue
demolition orders. Pertinent provision herein is Sec. 444 (b)(3)(vi) of the LGC, which
empowered the mayor to order the closure and removal of illegally constructed
establishments for failing to secure the necessary permits, to wit:

Section 444. The Chief Executive: Powers, Duties, Functions and

Compensation. –

xxxx

(2) Enforce all laws and ordinances relative to the governance of the
4
Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
5
Gancayo v. City Government of Quezon, G.R. No. 177807, October 11, 2011, 658 SCRA 853, 867

Page | 5
 city and in the exercise of the appropriate corporate powers provided for
under Section 22 of this Code, implement all approved policies, programs,
projects, services and activities of the city and, in addition to the
foregoing, shall:

(b) For efficient, effective and economical governance the purpose of

which is the general welfare of the municipality and its inhabitants
pursuant to Section 16 of this Code, the municipal mayor shall:
x x x x

(3) Initiate and maximize the generation of resources and revenues, and
apply the same to the implementation of development plans, program
objectives and priorities as provided for under Section 18 of this Code,
particularly those resources and revenues programmed for agro-industrial
development and country-wide growth and progress, and relative thereto,
shall:
x x x x

(vi) Require owners of illegally constructed houses, buildings or

other structures to obtain the necessary permit, subject to such
fines and penalties as may be imposed by law or ordinance, or to
make necessary changes in the construction of the same when
said construction violates any law or ordinance, or to order the
demolition or removal of said house, building or structure within
the period prescribed by law or ordinance. (emphasis supplied)

Clearly, being authorize to enforce all laws, the undersigned is authorized to

enforce demolition for any violation of the National Building Code. Notably, this cited
power of the Local Chief Executive is separate and distinct from the power to summarily
abate nuisances per se. Under the law, insofar as illegal constructions are
concerned, the mayor can, after satisfying the requirement of due notice and
hearing, order their closure and demolition.

Given the presence of the due process requirements under Sec. 444 (b)(3)(vi) of
the LGC, whether the building constituted a nuisance per se or a nuisance per accidens
becomes immaterial. The structures found near the Tinuy-an Falls failed to comply with
the legal requirements prior to construction. Non-issuance of the necessary
permits and clearances are clearly ground for demolition under the LGC. To
note, this non-issuance of the government requirements was supported by herein LGU
concerned Department Heads and corroborated by OIC-CENRO and his staff. Under this
premise, a court order that is required under normal circumstances is hereby dispensed
with.

PAMB HAS NO PRIMARY

JURISDICTION
OVER ILLEGAL STRUCTURES; ITS SITE
MANAGEMENT FUNCTION PRECLUDE
ISSUANCES OF NECESSARY BUILDING
AND BUSINESS PERMITS.

As observed during the meeting, majority of the opinions rendered were in favor
on PAMB having jurisdiction over the controversy. This is not correct. Section 11-A of

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the IRR of RA 11038 enumerates the pertinent powers and functions of the PAMB which
specifically provides:

“Section 11-A. Powers and Functions of the PAMB. The PAMB shall have
the following powers and functions:

a. Oversee the management over the protected area.

xxxxxxx

c. Recommend the deputation of other concerned agencies and

individuals for the enforcement of the laws, rules and regulations
governing the management over the protected area;
xxxxxxx

h. Issue rules and regulations for the resolution of conflicts through

appropriate and effective means;

l. Assess the effectiveness of the management of the protected

area; Provided that the members of the management board
representing the LGUs and national agencies in the PAMB shall inform
their respective constituents, offices or sectors, of PAMB-approved or
other relevant policies, rules, regulations, programs and projects and
shall ensure that the provisions of this Act and its implementing rules
and regulations are complied with and used as reference and
framework in their respective plans , policies, programs and projects.
Failure to comply with the foregoing shall be the basis for disciplinary
action against such member according to administrative rules and
regulations and such penalties as the PAMB may provide; Provided,
further, that the DENR, through the Regional Director, shall ensure
that PAMB acts within the scope of its powers and functions. In case
of conflicts between the resolution of PAMB and the existing
administrative orders or national application, the latter shall prevail.”

As the name PAMB connotes management, the powers and functions of PAMB is
limited only to site management. It does not include issuances of necessary building
and/or business permits needed prior to the construction either for residential and/or
commercial purposes.

Significantly, Tinuy-an Falls is continuously co-managed by the Local Government

Unit of Bislig thru the City Economic Enterprise Development Office, Barangay
Burboanan Council and the Manobo Tribal Council of Sote (MATRICOSO) by virtue of
Resolution No. 2019-01 approved by the Tinuy-an Management Board declaring the
status quo on the management of Tinuy-an Falls. This Tinuy-an Board resolution was
further adopted by the PAMB thru Resolution No. 2019-02 until the creation of
memorandum of agreement between TFPL-PAMB and LGU Bislig. This co-management
is based on the existing memoranda of agreements: (1) MOA between the City
Government of Bislig and Barangay Burboanan, (2) the City Government of Bislig and
the MATRICOSO and (3) City Government of Bislig and DENR Bislig City. Hence, the
role of LGU is not just representation before the PAMB but also as co-partner in the
management of Tinuy-an thru Tinuy-an Management Board which was reconstituted
thru Executive Order No.43 Series of 2019.6

6
Machine copies of Tinuy-an Management Board Resolution No. 2019-01, PAMB Resolution No. 2019-02 and
memoranda of agreements and Executive Order No. 43, Series of 2019 are hereto attached as Annexes “E”,
“F”,“G”, “H” and “I”, respectively.

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 To reiterate, the main issue in this case involves illegal structures. It does not
include resolution of conflicts. In fact, per record of the City Assessor, there is no
declared owner and no one has ever made any reports concerning the six (6) cottages
and other illegal structures within the 500-meter distance from the waterfall. Being so,
it is therefore, beyond the ambit of the PAMB as this board is merely authorize to issue
rules and regulations for the resolution of conflicts, not illegal structures, through
appropriate and effective means.

Accordingly, the power of the Local Chief Executive to issue demolition order
does not require any court order when it comes to illegal construction. PAMB is not a
court. As a board, some of its functions are merely recommendatory which pertain to
the management of the protected area. In view thereof, there is more reason to believe
that there is no need to seek the decision of PAMB for the LGU to demolish the subject
illegal structures. However, as part of its management function, we are of the
opinion to refer this matter before the PAMB since these illegal structures
were already presented and brought before this body of which this LGU has a
representation before it. As partners of this undertaking, we still respect the
PAMB.

Now to reiterate, the principal issue is non-compliance with the permit,

clearance, and zoning requirements for building constructions under national and
municipal laws. And based on law and jurisprudence, the office of the mayor has quasi-
judicial powers to order the closing and demolition of establishments. This power
granted by the LGC, as earlier explained, We believe, is not the same power devolved in
favor of the LGU herein-quoted, which is subject to review by the DENR. 7This devolved
power is enunciated under Sec. 17 (b)(2)(ii), which specifically provides:

“Section 17.  Basic Services and Facilities. -

(a) Local government units shall endeavor to be self-reliant and shall
continue exercising the powers and discharging the duties and
functions currently vested upon them. They shall also discharge the
functions and responsibilities of national agencies and offices devolved
to them pursuant to this Code. Local government units shall likewise
exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient
and effective provisions of the basic services and facilities enumerated
herein.
(b) Such basic services and facilities include, but are not limited to,
the following:

(2) For a municipality:

(ii) Pursuant to national policies and subject to supervision, control

and review of the DENR, implementation of community-based
forestry projects which include integrated social forestry programs and
similar projects; management and control of communal forests with
an area not exceeding fifty (50) square kilometers; establishment of
tree parks, greenbelts, and similar forest development projects.
(emphasis added)

(3) For a Province:

xxxxxxxx
7
Crisostomo vs. Municipality of Malay, Aklan, supra note 5,

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 (iii) Pursuant to national policies and subject to supervision, control
and review of the DENR, enforcement of forestry laws limited to
community-based forestry projects, pollution control law, small-scale
mining law, and other laws on the protection of the environment; and
mini-hydroelectric projects for local purposes; xxx”

4) For a City:
All the services and facilities of the municipality and province,
and in addition thereto, the following:
xxxxxxxx
(Underscoring and emphasis supplied)

As again enunciated in the famous Boracay West Coves’ case, 8the fact that the
building to be demolished is located within a forestland is under the administration of
the DENR is of no moment, for what is involved herein, strictly speaking, is not an issue
on environmental protection, conservation of natural resources, and the maintenance of
ecological balance, but the legality or illegality of the structure. Rather than treating this
as an environmental issue then, focus should not be diverted from the root cause of
this debacle––compliance.

RECOMMENDATION

In view of the foregoing premises, we recommend to demolish the illegal

structures composed of cottages, poultry, comfort room and fishpond over the 500-
meter distance from Tinuy-an waterfall.

RESPECTFULLY SUBMITTED.

Bislig City, Philippines, __________________________.

City Government of Bislig

By:

FLORENCIO C. GARAY
City Mayor

8
Crisostomo vs. Municipality of Malay, Aklan, supra note 5,

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