In its petition, the KOR claims that the Torre de Manila is a nuisance per se that deserves to be summarily abated even without judicial proceedings.[87] However, during the Oral Arguments, counsel for the KOR argued that the KOR now believes that the Torre de Manila is a nuisance per accidens and not a nuisance per se.[88]
Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, business, condition of property, or anything else which: (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) hinders or impairs the use of property.
The Court recognizes two kinds of nuisances. The first, nuisance per se, is one "recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity."[89] The second, nuisance per accidens, is that which "depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing in law constitutes a nuisance."[90]
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre de Manila project cannot be considered as a "direct menace to public health or safety." Not only is a condominium project commonplace in the City of Manila, DMCI-PDI has, according to the proper government agencies, complied with health and safety standards set by law. DMCI-PDI has been granted the following permits and clearances prior to starting the project: (1) Height Clearance Permit from the Civil Aviation Authority of the Philippines;[91] (2) Development Permit from the HLURB;[92] (3) Zoning Certification from the HLURB;[93] (4) Certificate of Environmental Compliance Commitment from the Environment Management Bureau of the Department of Environment and Natural Resources;[94] (5) Barangay Clearance;[95] (6) Zoning Permit;[96] (7) Building Permit;[97] (8) and Electrical and Mechanical Permit.[98]
Later, DMCI-PDI also obtained the right to build under a variance recommended by the MZBAA and granted by the City Council of Manila. Thus, there can be no doubt that the Torre de Manila project is not a nuisance per se.
On the other hand, the KOR now claims that the Torre de Manila is a nuisance per accidens.
By definition, a nuisance per accidens is determined based on its surrounding conditions and circumstances. These conditions and circumstances must be well established, not merely alleged. The Court cannot sinlply accept these conditions and circumstances as established facts as the KOR would have us do in this case.[99] The KOR itself concedes that the question of whether the Torre de Manila is a nuisance per accidens is a question of fact.[100]
The authority to decide when a nuisance exists is an authority to find facts, to estimate their force, and to apply rules of law to the case thus made.[101] This Court is no such authority. It is not a trier of facts. It cannot simply take the allegations in the petition and accept these as facts, more so in this case where these allegations are contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The question, then, of whether the Torre de Manila project is a nuisance per accidens must be settled after due proceedings brought before the proper Regional Trial Court. The KOR cannot circumvent the process in the guise of protecting national culture and heritage.
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