LET’S not mince words: The Supreme Court’s acquiescence to the advocates of ‘heritage’ in issuing a temporary restraining order halting the construction of DMCI’s Torre de Manila condominium block was a huge mistake, and is going to cause many more problems than it solves.
The biggest knock against the construction project, which has already reached 30 stories of the 49-story planned height of the building, is that it “photobombs” the Rizal Monument located at the opposite end of Rizal Park.
Other complaints include questions about whether the building’s footprint and combined floor area are in line with Manila zoning rules, and whether access to the property—which is shoehorned into a relatively small area behind Adamson University and the ruins of the old jai-alai fronton—is adequate in case of a fire or other emergency.
To be fair, the aesthetic argument cannot be completely dismissed; having visited the park and taken a look for myself, I would agree that the building is a not altogether agreeable part of the background to the monument when viewed from the west. Even though the Torre de Manila lies outside the sightline along the axis of the park, it is still a visually invasive presence; it may not be as unattractive once completed, but in its present partly constructed state is frankly quite ugly.
In terms of the other allegations against the project—implied irregularities in the issuance of building and safety permits—a relatively straightforward investigation comparing the design, the building as it is actually being constructed, and the relevant laws and regulations should quickly reveal any discrepancies.
In short, there are a number of significant questions about the project, questions that should be resolved, and ideally should have been resolved before the first shovel of dirt was turned. This is fundamentally where the problem with this week’s Supreme Court move lies. It may very well be the case that the Torre de Manila should not have been built, but the time to decide that is before the project is approved by the city of Manila and other concerned agencies—not when there are already 30 floors in the air.
The blame for allowing this to happen lies first with the ‘heritage advocates’—the Knights of Rizal group who filed the petition approved by the SC, Senator Pia Cayetano, the National Commission on Culture and the Arts (NCCA) and various local activists, all of whom were asleep at the switch and permitted the project to pass muster with the City of Manila without meaningful dissent. The Supreme Court, however, should not have an entertained their long overdue complaint, and in fact breaks a precedent it only recently established—the concept of operative fact—in doing so.
That doctrine, which was creatively applied to the judgment against the Administration’s execrable Disbursement Acceleration Program, holds that projects completed or progressed to a point where undoing them would be excessively costly or problematic are more-or-less faits accompli as long as they were otherwise done in good faith. Without evidence to the contrary, at least at this point, we have to assume that DMCI proceeded with a presumption of regularity in whatever steps were taken to vet and approve the project in the first place. Therefore, the physical existence of 30 floors of a 49-story building should be considered an operative fact: A decision to the effect that, yes, the building should not have been permitted, but that the reasonable time for challenging it has passed would be the logical conclusion.
More to the point, it would be the only decision that would not wreak havoc on the real estate sector. Again, let us assume, because there is no evidence indicating otherwise at this point, that as far as DMCI was concerned, the process of approval was conducted properly, and that the project was legally authorized. Yet more than halfway through, questions that are raised far beyond a reasonable amount of time have forced a halt to construction. The entire episode reveals a new and, from an investor’s point of view, actually quite frightening risk factor—wild-card legal action that could result in not only the loss of the entire investment, but extra costs as well (such as if DMCI is forced to demolish the partly completed but still-imposing structure).
Unless the case is resolved relatively quickly in DMCI’s favor, which it should be, although that decision should also be accompanied by some further clarifications of what can be built and where, to avoid similar controversies in the future, expect to see some impact on real estate investment—no developer in his right mind will want to proceed with anything even remotely similar to the Torre de Manila project until the issue is resolved one way or another. And if it is resolved with a decision that further restricts development, whatever downturn occurs as a result of the Torre de Manila project being thrown into limbo by this week’s TRO will simply continue.