Petition No. 286/2550
Petition: Appeal against the order requesting to fix a measure or method of protection to lessen temporary hardship prior to passing judgement.
Case Black No. 54/2550
Case Red No..
Petition to The Supreme Administrative Court
8th May 2007
group, 10 in all plaint makers
Between
Competent Officer of locale of Pattaya City 1, plaint receivers
View Talay Jomtien Condominium (1999) Co., Ltd. 2.
I, View Talay Jomtien Condominium (1999) Co., Ltd. 2, represented by Mr. Preecha Techamualvaivit, recipient of Power of Attorney..plaint receivers
would submit an Appeal to the order to temporarily grant to the plaint makers before the Supreme Administrative Court to request for the revocation of the said order or to alter the order as a matter of urgency. This, for the benefit and justice and for lessening the damage to the plaint receivers as follows in this Appeal.
1. This case the court has ordered View Talay Jomtien Condominium (1999) Co., Ltd. to be the co-party in the capacity of plaint receiver 2. On account of the court the plaint receiver 2 had direct bearing on the result of this case and directed the court order deliberating the measure of lessening the temporary hardship prior to passing judgement on 28th March 2007 at 10.00 hrs. for the knowledge of the plaint receiver 2 at the same time.
At the interrogation of the parties at the consideration stage the petition for the order requesting to fix a measure or method of protection to lessen temporary hardship prior to passing judgement of the 10 plaint makers the facts established at interrogation stage were:
Mr. Amnat Thiengtham, the recipient of Power of Attorney of the 10 plaint makers testified that the plaint receiver 2 constructed a building away from the MSL, namely, the lowest level of the sea at ebb tide about 100 m. only not the 200 m. as per the Ministerial Regulations Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act B.E. 2479, at present the stage of construction situation has passed the piling stage and was at the footing stage, but the sheet pile has yet to be completed, there was no work done after 17.00 hrs. The point where the 10 plaint makers used as the starting point to measure the 200 m. in accordance with the Ministerial Regulations Issue 9 was the point of the MSL, meaning the point where the sea level was at its lowest, if measured from this point the building of the plaint receiver 2 shall be within the 200 m. as per the said Ministerial Regulations.
Mr. Pongsakdi Piyakamolrat, Civil Engineer 7, recipient of approval from plaint receiver 1 testified that the Ministerial Regulations Issue 8 (B.E. 2519) and Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act 2547 which were still in use. In accordance with the Ministerial Regulations Issue 8, point 3 the stipulated 100 m. from area of Buildings Control as per the map attached to the Act B.E. 2499. Then there had been an alteration and amendment to the Ministerial Regulations Issue 9 where the distance had been increased to 200 m. from the Buildings Control area as per map attached to the Act B.E. 2521 which had been extended into the sea. Therefore, the 100 m. as per the Ministerial Regulations Issue 8 and the distance of 200 m. as per the Ministerial Regulations Issue 9 was the same point. In accordance with the Act year B.E. 2521 the Controlled Building area shall thus be extended 100 m. further from the shoreline at MSL, the medial sea level, was at the highest point of the sea at natural high tide, the building of the plaint receiver 2 was situated about 205 m. from the Controlled Building area as per the Ministerial Regulations Issue 9.
Mr. Preecha Techamualvaivit, the recipient of Power of Attorney from the plaint receiver 2 testified that the Ministerial Regulations Issue 8 (B.E.2519) and Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act B.E. 2479 should not have a controlling effect in this current time.
The Court had considered the case file at the interrogation stage had ordered the plaint receiver 2 to cease construction in accordance with the Building Permit No. 167/2550 dated 28th November 2006 temporarily until the court has made a judgement or has an order to be something else. Effective from the date of acknowledgement of this said order.
2. With due respects to the deliberation of the court but the plaint receiver 2, in all honesty, felt that the method used culminated in the order still lacked sufficient reasons to warrant the method described, furthermore has caused great damage to the plaint receiver 2 and there was one sufficient reason of another kind that shall be asked of the court to cancel/withdraw or alter that order. In that the plaint receiver 2 had requested to investigate the case file at the court after the court had issued the order for the temporary protection and found that explanations dated 4th April 2007 of the plaint receiver 1 had been entered into the case file on 9th April 2007 at 15.00 hrs. and the court had ordered its acceptance-inclusion on the next day which was after the court had issued an order for the temporary protection to the 10 plaint makers. The explanations of the plaint receiver 1 had explained the principle of finding the MSL which was calculated by the Department of Hydrography of the Navy which was the direct authority related in this field.
The plaint maker 2 had therefore submitted a petition dated 26th April 2007 requesting the court to consider to alter the order of temporary protection, but the court refused to accept the petition of the petitioner 2 having ascertained that the facts of the explanations as contained in document dated 4th April 2007 would be unable to demonstrate that the coast line at MSL in the area of dispute would be at which point. This has to be measured from the said point a further 100 m. to become the point of building control zone in accordance with the Act B.E. 2521together with the inability of checking at that time that if the distance from the point of control of the said building on to land the building under dispute will fall outside the 200 m. or not. The facts to settle the issue shall have to be from the demonstration of the method to search of the facts to the court in the first place. Therefore the explanations as contained in document dated 4th April 2007 were ineffectual rendering the change in the order to fix a measure or method of protection to lessen temporary hardship prior to passing judgement. And the plaint receiver 2 may exercise the right to appeal the said order to the Supreme Administrative Court resulting in the order of not accepting the petition of plaint receiver 2 for consideration.
Plaint receiver 2 was still not in agreement with the decision of the Administrative Court Rayong in both the orders of the Administrative Court because, the order to fix a measure or method of protection to lessen temporary hardship prior to passing judgement, if permitted to have effects would not only shall cause damage devoid of justice to not only plaint receiver 2 but shall create damage to plaint receiver 1 both in the image to the city and damage to the City of Pattaya shall receive from the substantial demand for damages from plaint receiver 2 and other persons who suffered damaged through this affair through to the image that the country will suffer in the eyes of foreigners. The plaint receiver 2 was thus bound to submit an appeal in objection to the order of the Administrative Court, Rayong to the Supreme Administrative Court for consideration and to order the cancellation of the order to fix a measure or method of protection to lessen temporary hardship prior to passing judgement that has occurred in this case as a matter of urgency for reasons that plaint receiver 2 shall respectfully present to the court as follows:
(1) The plaint receiver 2 was not a direct litigant of the plaint makers but has become a party in the capacity of plaint receiver 2 through the
(2) writ or order of the court. The main issue of this dispute which the 10 plaint makers accused was that plaint receiver 1 issued a Building Permit No. 162/2550 dated 28th November 2006 contrary to the law, not in compliance with the principles, method and conditions as stipulated in the Ministerial Regulations Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act B.E. 2479 with the aim of favouring the benefits to the plaint receiver 2.
(3) The application for the Building Permit under dispute in this case the plaint receiver 2 had proceeded in steps required by those undertaking business in real estate in general without having received any favours from the plaint receiver 1 having proceeded in steps as follows:
27th August 2005 the plaint receiver 2 in the capacity of owner of land under Title Deed 10464, Nongprue sub-district, Banglamung district, Chonburi province had submitted a letter for Pattaya City to investigate to determine at which point on the said land of plaint receiver 2, the distance of 100 m., measured from MSL fell.
9th September 2005, Pattaya City, replied to the above request by having drawn a line on a Photostat copy of the Title Deed together with the signature of the certifying officer to show in numeric figures the distance of 100 m. , measured from MSL on the North side of the land under dispute shall pass public land (coast line) the distance of 49.00 m. and deep into the land under dispute a further 51.00 m. to reach the 100 m. from MSL. The South side of the land under dispute, the 100 m. measured from MSL shall fall on public land a distance of 49.50 m. and deep into the land under dispute a further 50.50 m. to achieve the 100 m. from MSL as per evidence of copy of letter from Pattaya City and copy of Title Deed as per document attached 1.
20th November 2006, the committee experienced in examining analysis report on effect on the environment, Office of Policy and National Resource Planning and Environment gave consent to the report on the analysis of effects on the environment View Talay Jomtien Beach Condominium Project (project 7) as appeared in documentary evidence ref. Tor. Sor. 1009/9852 dated 20th November 2006 as per document attached 2.
28th November 2006 the plaint receiver 1 then issued the Building Permit is dispute to the plaint receiver 2.
Counting the time spent in obtaining the Building Permit in dispute had taken at least 15 months from the date of the request to determine the distance of restriction to build a tall building on the land which can be considered to have taken longer than other projects of plaint receiver 2 and others who had applied. And as found out from other operators who went through the same procedure; that the 10 plaint makers stated in the plaint that plaint receiver 1 had issued the Building Permit under dispute for favour benefiting the plaint receiver 2 was therefore not true,
(4) View Talay Beach Condominium Project (project 7) that will be built on land with the Building Permit under dispute already received bordered on a commercial venture comprising of:
A permanent R/C building, 27 storey, constructed in R/C with sun roof.
A Condominium Juristic Person with 912 units, 24 shop houses for general distribution.
Division of area;
Condominium 101,469 sq. m.
Car park 11,708 sq. m.
Swimming pool 1,134 sq. m.
Pipes 1,281 sq. m.
Total 115,572 sq. m.
Details area as appeared in the copy of the Building Permit, document attached 3.
If the construction cost is calculated at the lower end (on average) at Bht. 10,000.- per sq. m. the cost of construction for the entire project would amount to Bht. 1,155,720,000.- Bht. One billion one hundred and fifty five million seven hundred and twenty thousand only) And from the date the Court ordered the construction work to be stopped temporarily, the work so far completed were the ground preparation work, iron fence, excavation and sheet pile, land adjustments and temporary road work surface, temporary building for instance temporary office, bathroom, store room and piling. The work completed as stated above is related to the structural column and footing which has yet to be completed. The construction costs so far have amounted to about Bht. 100,000,000.- the balance of construction work which shall not be less than Bht. 1,000,000,000.- and has to be completed within 2009 otherwise it will be contrary to the permit.
(5) The plaint receiver 2 would like to further state that the estimated cost for the construction above when added to the price of land in possession and the management costs that will be incurred throughout the project, the total investment cost will not be less than two billion. This coupled with the Building to be constructed was of permanent nature unable to be moved to avoid inspection of any sort later. The accompanying permits applied for in stages all passed many government units all documented for clear evidence stage by stage, if any stage was completed illegally the competent officer involved and others in this connection should also be responsible or the error both criminally and civilly, all without exceptions.
The pattern arisen at the interrogation stage where the plaint makers and plaint receiver 1 have a difference of understanding was the starting point in the measurement of distance in accordance with the Ministerial Regulations Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act B.E. 2479. The 10 plaint makers used the lowest point of the sea level at ebb tide as the starting point to take the measurement, whereas the plaint receiver 1 used a point distant from the highest point of sea water at natural high tide outward a further 100 m. as the starting point. This difference in understanding the court relied on as a basis in the issuance of an order to give temporary protection prior to judgement to the 10 plaint makers. This has caused a lot of damage to the plaint receiver 2, if, the court considered the explanations dated 4th April 2007 of the plaint receiver 1 that was submitted for consideration prior to the issuance of order the correct understanding would have been brought to light in accordance with the standard of determining the MSL as practiced technically and the correctness, justly by law would have immediately been achieved and would have prevented the occurred damages. The explanations of plaint receiver 1stated clearly how the arrival of the value of MSL came about, calculated and stipulated by the Department of Hydrography of the Navy with a point of reference at Koh Lak, Prachuabkirikhan province. And the level used in this calculation by the Department of Hydrography of the Navy was the MSL for point of reference in Thailand, no other person(s) may set another method of calculation and there can not be another understanding. In carrying out the duties of the Land Department relating to the coast line the reference point for the determination of MSL would refer to Koh Lak, Prachuabkirikhan province as well.
In the text of the explanations from the plaint receiver 1over and above the clarity there stated as to the meaning of MSL there was reference to the evolution of the alignment of the building control zone as per the Ministerial Regulations Issue 8 (B.E. 2519) and Ministerial Regulations Issue 9 (B.E.2521) issued pursuant to the Buildings Control Act B.E. 2479. And these were the two Ministerial Regulations that the recipient of Power of Attorney from plaint receiver 2 stated to the court that same should now be in effectual, the truth however these were still in effect only there has been some amendments.
(6) The plaint receiver 2 has studied the provision in the related law in detail and found that the Ministerial Regulations Issue 8 (B.E. 2519) issued pursuant to the Buildings Control Act B.E. 2479 issued on 12th June 2529* (1986) circularised in the Government Gazette on 29th June 2519. Then on 23 November 2521 there was the Ministerial Regulations Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act 2479 effective with alterations to the Ministerial Regulations Issue 8 (B.E. 2519) as follows:
a. Contents in point 1 of the Ministerial Regulations Issue 9 issued pursuant to the Buildings Control Act B.E. 2479 to cancel the contents in point 1 of the Ministerial Regulations Issue 8 (B.E. 2519) issued pursuant to the Buildings Control Act B.E. 2479 and should be 2519 to use the following contents instead.
“ 1. This Ministerial Regulations shall be used to enforce within the alignment as per the map attached to the Act , the Buildings Control Act B.E. 2479 in the locale of Banglamung sub-district, Nongplalai sub-district, Naklua sub-district and Nongprue sub-district, Bamglamung district Chonburi province B.E. 2521”
b. Contents in point 2 of the Ministerial Regulations Issue 9 issued pursuant to the Buildings Control Act B.E. 2479 to cancel the contents in point 3 of the Ministerial Regulations Issue 8 (B.E. 2519) issued pursuant to the Buildings Control Act B.E. 2479 and to use the following contents instead.
“ 3 To set the area within 200 m. by measuring from Building Control area as per plan attached to the Act, the Buildings Control Act B.E. 2479 in the locale of Banglamung sub-district, Nongplalai sub-district, Naklua sub-district and Nongprue sub-district, Bamglamung district Chonburi province B.E. 2521, sea front, as area which the buildings that are listed as follows shall not be constructed, namely
(1) Site of storage and distribution of fuel.
(2) Theatre
(3) Row of Rooms
(4) Row of commercial buildings
(5) Fresh provisions market
(6) Garage or paint spraying garage for cars, motorcycle or motor boats
(7) Goods depot
(8) Buildings with height above 14 m.”
The Ministerial Regulations Issue 9(B.E. 2521) issued pursuant to the Buildings Control Act B.E. 2479 circularised in the Government Gazette on 31st December 2521effective as of 1st January 2522 onwards. It is requested to be attached to this appeal as document attached 4.
(7) On 26th December 2521His Majesty the King had graciously proclaimed law the Buildings Control Act B.E. 2479 in the locale of Banglamung sub-district, Nongplalai sub-district, Naklua sub-district and Nongprue sub-district, Bamglamung district Chonburi province B.E. 2521to be in effect, where
(a) Contents in Section 3 of this Act to cancel the Act to use the Buildings
(b) Control Act B.E. 2479 in the locale of Banglamung sub-district, Naklua sub-district and Nongprue sub-district, Banglamung district, Chonburi province B.E. 2499 and
(c) Contents in Section 4 of this Act, to employ the Buildings Control Act B.E. 2479 in the locale of Banglamung sub-district, Nongplalai sub-district, Naklua sub-district and Nongprue sub-district, Bamglamung district Chonburi province within the alignment as indicated as per map attached to this Act
The Act (the Issue given as at 26th December 2521) as stated in this point was circularised in the Government Gazette on 31st December 2521effective as of 1st January 2522 onwards. It is requested to be attached to this appeal as document attached 5.
(8) Counting from the said Act as stated in point 6 and the Ministerial Regulations Issue 9 (B.E. 2521) as stated in this Appeal has been promulgated into law. The map attached to the Act to use the Buildings Control Act B.E. 2479 in the locale of Banglamung sub-district, Nongplalai sub-district, Naklua sub-district and Nongprue sub-district, Bamglamung district Chonburi province B.E. 2521is held to be the main map, the basis on which all related parties must follow and abide by and the said principle map has a Photostat copy that is also attached as document attached 5, but in size A4 which was very small. Permission will be sought to enlarge the copy in question for ease of sight and ease of reading. It is requested to be attached to this appeal as document attached 6.
When considering the map attached to the Act B.E, 2521 as per the document attached 6 understanding of the sequence will be as follows:
1) In considering the map attached to the Act B.E, 2521 as per the document attached 6, there can be seen 4 small circles. From the said 4 circles a thick black line is drawn between the points encompassing the area of locale of Banglamung sub-district, Nongplalai sub-district, Naklua sub-district and Nongprue sub-district, Bamglamung district Chonburi province, and the areawithin the drawn line was the area within the alignment of Building Construction Control that will be used to enforce in accordance with Buildings Control Act B.E. 2479 (per amended version) and used effective from 1st January 2522.
2) The alignment of Building Construction Control as stated in 1), the portion of the thick line drawn from circular point sea front side, both on the upper and the lower portion of the map should inevitably be the alignment of the building construction control alignment, sea front side.
3) A thin line (not thick as alignment of building construction control) that was parallel to the alignment of the line of the building construction control alignment, sea front side as in 2). There will be a straight line drawn from the letters forming the sentence reading ‘alignment sea shore at mean sea level’ and there was an arrow head pointing to reaching the said thin line to the right of that thin line. It appeared that the orange line both on the upper and the lower part of the map showing that the alignment of the said thin line (not thick) was the alignment of the sea shore at mean sea level.
4) Opposite to the portion marked in orange there will be a short straight line that is drawn from the alignment of building construction control, sea front side into the sea and the word ‘100 m.’ controlling it at the end of that line which have been marked in green at both places. It is inevitably to be understood that the alignment of building construction control on the seafront side was beyond the sea shore at mean sea level extending into the sea a further distance of 100 m.
5) When the alignment of the building construction control is known, seafront side as in 4) and a measurement is taken from the alignment of the building construction control, seafront side on land for 200 m., where that point fell that area, all of it is the area that a building is higher than 14 m. will not be able to be built.
6) When the alignment of the seashore at mean sea level is known, has a distance from the alignment of building construction control, seafront side at 100 m., measured up on shore a further 100 m., where that fell the measured alignment shall be the point that a
7) high building is prohibited, which the result received from the procedure in accordance with this parenthesis shall be the same alignment as measured in accordance with 5) it’s the same.
(9) When considering the letter of the law to the said point 5 to 7 of this Appeal in depth, the plaint receiver 2 honestly saw that the procedure prior to having received the permit under dispute, particularly the request to determine the 100 m. distance from the median sea level for the land to be used for the construction of a tall building as per document attached 1. It is held that plaint receiver 2 has done correctly as expected for a merchant as in the case of the plaint receiver 2.
(10) In order to demonstrate that the plaint receiver 1 had proceeded to determine the 100 m. distance measured from the MSL to the land plot that will be used for construction as per Building Permit under dispute was correct in line with the law and acceptable, the plaint receiver 1 had sent a letter ref. Chor. Bor. 52303/3088 dated 20th April 2007 requesting the Office of Civil Engineering and City Planning, Chonburi province to investigate and check the 100 m. distance measured from the MSL will reach what line on the land to be used in the construction as per Building Permit of a building under dispute. The Office of Civil Engineering and City Planning, Chonburi province complied and after having investigated forwarded a reply to the Mayor of Pattaya City (plaint receiver 1) as per copy of attachment, document attached 7 the result of which showed that City Hall had proceeded correctly.
As for the degree of correctness, it is requested to submit a photostat copy of the Title Deed of the land that will be used in the construction as per Building Permit under dispute that the Office of Civil Engineering as attached , document attached 7 to indicate in colours to for use in the Appeal as an attachment, document attached 8, namely,
1) Document attached 8, the portion shown in light green and the portion marked in orange as the total area of the entire plot.
2) The portion marked in light green will be the area marked for the construction of a building with height above 14 m. from road level and the portion marked in orange will be the area marked for the
3) construction of the building with height of not over 14 m. from road level. The balance of the area left marked in green was public land right up to MSL, namely the point of the value of mean sea level.
4) The straight line that is drawn between light green and area in orange was the line stipulating the 100 m. distance measured from the point that has the MSL into the land that will be used for the construction. The plaint receiver 2 used the alignment of the said black line as the basic alignment in the design plan for the construction so that the alignment for each type of building is not breached. Also it was used as the principle marker in the submission for the various permits to the relative authorities, for instance, used in the submission to the Office of Civil Engineering and Natural Resource Planning and environment.
5) The black straight line drawn between area in light green and orange as per 4) will have two lines together.
The first line shall be the 100 m. distance alignment measured from the MSL which was created by Pattaya City official, the result of a check on the measurement from the North side will pass through public area (marked in green) 49.00 m. passed the construction area the portion marked in orange 51.00 m. and on the South side will pass public area (marked in green) 49.50 m passed the construction area the portion marked in orange 50.50 m.
The second line shall be the 100 m. distance alignment measured from the MSL which was created by the Office of Civil Engineering and Natural Resource Planning and environment, Chonburi province , the result of a check on the measurement from the North side will pass through public area (marked in green) 51.00 m. passed the construction area the portion marked in orange 49.00 m. and on the South side will pass public area (marked in green) 49.75 m. passed the construction area the portion marked in orange 50.25 m.
Thus, the 100 m alignment 1 measured from the MSL which was created by Pattaya City official (plaint receiver1) and the alignment that was created by the Office of Civil Engineering and Natural Resource Planning and environment, Chonburi province are virtually on the same alignment, besides the inspectors were units of Civil Departments the results should be recognised as correct without a doubt and would bound the inspectors with responsibility both criminally and civilly if errors occurred as these were done in the offices of the two units. In the work process of the said two civil government units the plaint receiver 2, the 10 plaint makers may not have undertaken the task themselves and even if the judgement of any court would invariably depend on the related government unit to similarly certify. Where the plaint makers and the recipient of Power of Attorney stated in the narration of the plaint or state to the court in the interrogation stage, for instance, had used the words ‘the plaint receiver 2 constructed the building away from the point of MSL i.e. the level of water (sea) ebbed lowest about 100 m. only not reaching 200 m. as per the Ministerial Regulations Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act B.E. 2479’ and ‘ the point that the 10 plaint makers used as the starting point to measure 200 m. as per the Ministerial Regulations Issue 9 was the point of MSL meaning the lowest point at ebb tide, if the measurement was taken from this point the building of the plaint receiver 2 will be within the distance of 200 m. as per the Ministerial Regulations’ , all were statements from ones own ignorance devoid of technical knowledge or backed up by any point of law. The court therefore was not prepared to listen to the facts presented by the recipient of Power of Attorney from the said 10 plaint makers to the point of having to rely on fixing a measure or method of protection to lessen temporary hardship prior to passing judgement. The plaint receiver 2 , in all honesty, was of the opinion that if the Administrative Court, Rayong would order any other government unit to recheck prior to passing the order to fix a measure or method of protection to lessen temporary hardship prior to passing judgement would have given justice to all the disputing parties, besides if the said inspection would have materialised the case would be over in no time at all, unnecessary to await any other facts whatsoever. Mentioning only the building in accordance with the drawings that the plaint receiver 2 received building permit for from Pattaya City on this occasion the high building would have commenced from a distance of 205 m. from the alignment of the building construction control, seafront side in any case which, the portion that construction work had started will appear as per photograph attached to the appeal, document attached 7 for which facts can be easily gleaned. It only needed the court to issue an order to any reliable government unit to come and inspect the distance stipulated by law the results will be known immediately besides enabling judgement to be passed there and then. There was no reasonable reason why the plaint receiver 2 should bear the resultant damage from the order to give the unjust temporary protection from the Administrative Court on this occasion.
(11) The order giving protection to the 10 plaint makers in this case over and above there being no sufficient reason and not being just to the plaint receiver 2 damage was also occasioned to a government unit, namely Pattaya City, Chonburi and government units which had received petitions from the plaint makers and group through to the image of the country, the end loser. Also, this has caused much damage to the plaint receiver 2, for instance, the material and equipment laying idle at site of construction which will deteriorate to the point of being unusable as per document attached 8, the iron rods in the structural columns left standing as in the photographs, document 9 and 10 will be eroded by rust because of the nearness to the sea which may cause damage, engineering factor, to the structure remedial measures will have to be taken to comply with the norm at enormous expense. All the equipments, for instance the tower crane, unused for a certain time will have to be checked for its efficiency particularly the motorised part, the cost is estimated to be at least Bht. 500,000.- (Bht. Five hundred thousand only). Over and above this all the contractors, main and minors will lose income. Technical personnel and the various skilled labours through to the labours of which there were more than 400 will immediately be out of a job creating a social problem at large. Over and above the damage mentioned in the previous paragraph the plaint receiver 2 will receive damage from cancellation of contracts from customers who have made bookings to an amount of over Bht. 1,100,000,000.- (Bht. One billion one hundred million only)
When the portion of the investment in construction is mentioned, about Bht. 1,150,000,000.- (Bht. One billion one hundred and fifty million only) damage to the country in terms of revenue in taxes would be about Bht. 70,000,000.- (Bht. Seventy million only) and tax deductable at source of at least Bht. 10,000,000.-(Bht. Ten million only), adding this to the value of the units this will realise about Bht. 3,000,000,000.- (Bht. Three billion only). The tax that the government will receive in special business tax would be Bht. 99,000,000.- (Bht. Ninety nine million only), transfer tax Bht. 60,000,000.- (Bht. Sixty million only) tax deducted at source Bht. 30,000,000.- (Bht. Thirty million only) (approximately). The damage is huge. And all the damages that the plaint receiver 2 has received counting from the day that the Administrative Court, Rayong issued an order to give temporary protection prior to judgement to the date of decision of this case the plaint receiver 2 found it necessary to exercise the right through the court to demand from Pattaya City, this because the plaint receiver 2 had requested the Building Permit that was only legal by law.
(12) The plaint receiver 2, in the capacity of owner of rights to the land under dispute, would naturally have the full right to make full benefits on land which is one’s own assets within the confines of the law, the limitation of rights illegally imposed may not be done.
The 10 plaint makers were only owners of some units in a condominium which has about 1,000.- units situated on another plot of land with another plot in between would invariably have known in their own hearts that one day there may be another building constructed especially Pattaya City was one large city famous the world over and would have a high density of citizens with plenty of residences and commercial buildings and other constructions, the condominium that the 10 plaint makers resided in is situated in a highly developed area where land was at a premium and expensive necessary to build higher and higher to obtain the most benefit. The building of the plaint receiver 2 that will be constructed was on drawings already approved by the relative government unit, the 10 plaint makers therefore has no right to bring plaint against the receiver of plaint 2 in this case and where having accused the plaint receiver 1 to have issued the Building Permit under dispute under any applicable law are free to pursue the case with plaint receiver 1 criminally to the Court of Justice and not the Administrative Court that the 10 plaint makers have filed a case.
(13) The plaint receiver 2 would like to present facts on another front which showed that the 10 plaint makers had not come to court squeaky clean but came to court with ill intent against the plaint receiver 2 from the onset. As the 10 plaint makers stated in the plaint that prior to this case the 10 plaint makers and others who lived in Jomtien Complex Condotel Building had petitioned for justice and had objected to the sanction to build to the plaint receiver 1 by having gathered at City Hall, Pattaya City which was the offices of the plaint receiver 1 on 29th November 2006 and related government offices throughout but received no remedial measures to the hardship to the 10 plaint makers and others which was not the truth, because some of the 10 plaint makers and others who resided in Jomtien Complex Condotel Building had intentions from the onset not to let the plaint receiver 2 obtain permission to proceed with the construction of View Talay Jomtien Beach Condominium Project (Project 7) by jointly proceeded to do everything to achieve the said aim prior to the plaint receiver 2 to commence the project as the plaint receiver 2 will wish to display some of documentary evidence to the court, in part to the Supreme Administrative Court to support the truth in this point, which documents to be shown are documents as appeared attached to the plaint namely:
(1) 4th August 2005 Mr. Wuttisak Vanichkul, lawyer attached to Kimberly Law Office wrote to the Mayor of Pattaya City citing the receipt of Power of Attorney from Jomtien Complex Condotel Juristic Person to forward this letter to Pattaya City requesting
(2) Pattaya City to deny the request to construct the building, View Talay Jomtien Beach Condominium (1999) of plaint receiver 2 citing reason that Jomtien Complex Condotel Juristic Person building had been in existence for over 10 years, all the unit buyers bought under the condition that every room must have the sea view from the where the building was situated. At present it was learnt that Mr. Kriengchai Panichpakdi (Managing Director of recipient of plaint 2) has bought 13 rai of land situated in front of Jomtien Complex Condotel building for the construction of View Talay Jomtien Beach Condominium Project (Project 7), a building of 27 storey with about 900 units if Pattaya City gave approval there will be many effects because residential area will be congested with many tall buildings, sea views will be blocked for owners who had bought units in Jomtien Complex Condotel. The construction of a new building will destroy the value of the condominium, unit price in the Jomtien Comples Condotel will diminish therefore it was requested that Pattaya City to decline giving approval of construction of View Talay Jomtien Condominium Project (Project 7) for the sake of justice of the law and the well being of the citizens and environment.
(3) 31st October 2005 Mr. Anattachai Rattakul the manager of Jomtien Complex Condotel Condominium Juristic Person sent a letter to the provincial Governor advising that the plaint receiver 2 will construct a building in the project View Talay Jomtien Beach Condominium Project (Project 7, a building of 27 storey that will block the sea view for those in View Talay Jomtien Beach Condominium Project (Project 7, which was a breach and a disturbance of rights of joint ownership of the said condominium. The Provincial Governor, represented by the competent officer of the Land Department replied under ref. Chor. Bor 0019/22280 dated 1st December 2005 to the manager of Jomtien Complex Condotel Condominium Juristic Person stating that View Talay Jomtien Beach Condominium Project (Project 7), has not applied to register as a condominium to the Land Department, Chonburi, Banglamung Branch in any event.
And
There was another letter dated the same day addressed to the mayor of Pattaya City petitioned in the event that View Talay Jomtien Beach Condominium Project (Project 7) will construct a building blocking the sea view of Jomtien Complex Condotel Condominium. Pattaya City sent the said petition letter to the Office of Policy and Natural Resource Planning and Environment for investigation. There was a reply ref. Tor Sor. 1009/12632 dated 19th December 2005 to the manager of Jomtien Complex Condotel Condominium advising that View Talay Jomtien Beach Condominium Project (Project 7) has not reported the analysis to the environment to the office to proceed in accordance with the steps in consideration of report.
(4) 17th April 2006 Mr. Thawil Intaraksa, manager of Jomtien Complex Condotel sent a letter to the Secretary of the Office of Policy and Natural Resource Planning and Environment advising that the said Condominium Juristic Person had learnt from a letter from the Office of Policy and Natural Resource Planning and Environment ref Tor. Sor. 1009/3224 dated 11th April 2006 that the View Talay project had submitted an analysis report on the effect on the environment to the Office of Policy and Natural Resource Planning and Environment to consider the effects on the environment in accordance with the National Promotion and Maintenance of Quality of Environment Act B.E. 2535 and had proposed its view point or recommendation as to the technical points relating to the effect on the environment, both directly and indirectly as well as had sent the plan in the negotiation with View Talay as well.
(5) 25th May 2006 Jomtien Complex Condotel sent a letter in request for justice to the Chairman of Pattaya Council.
(6) 17th November 2006, Jomtien Complex Condotel Condominium Juristic Person sent a letter requesting for Royal justice to the Royal Principle Secretary petitioned that the construction of View Talay Jomtien Beach Condominium Project (Project 7, a building of 27 storey blocked out the view of the petitioners and people in residence
(7) in the condominium Jomtien Complex 550 units, being a construction that has taken advantage of residents which was under the care of the Rights Protection Division. The construction of View Talay Jomtien Beach Condominium Project (Project 7) has effect on the environment both directly and indirectly causing filth and dirty appearance through rubbish, causing water to be contaminated causing filth and dirty appearance on the body and mind and the value of life where this had been submitted for justice to the National Office of Policy and Natural Resource Planning and Environment without having received a consideration.
(8) 19th December 2006 the Office of Policy and Natural Resource Planning and Environment replied with a letter ref. Tor. Sor. 1009/10691 to the Jomtien Complex Condotel Condominium that the analysis report on the effects on the environment, View Talay Jomtien Beach Condominium Project (Project 7) has received approval from the committee experienced in the consideration of analysis report on effects on the environment in residence projects and this has been advised to the owner of the project (plaint receiver 2) on 20th November 2006.
With reasons that the plaint receiver 2 has stated from the beginning it is requested that the Supreme Administrative Court to consider and issue an order revoking the order of the Administrative Court, Rayong dated 9th April 2007 where it was ordered for the plaint receiver 2 to cease construction as per Building Permit 162/2550 dated 28th November 2006 temporarily until the court shall issue a judgement or order otherwise, please lend your consent.
Your kind consideration is sought.
Signed………………………….. plaint receiver 2
(Mr. Pricha Techamualvaivit)
Recipient of Power of Attorney
DOCUMENT ATTACHED 2
Ref. Tor. Sor. 1009/9852
Office of Policy and Planning
Natural Resource and Environment
60/1 Soi Piboonwatana 7,
Rama VI Road,
Bangkok 10400
20th November 2006
Re: Analysis report on effects on environment, View Talay Jomtien Beach Condominium Project (Project 7)
To: The Managing Director,
View Talay Jomtien Condominium (1999) Co., Ltd.
In reference to: Letter from the Office of Policy and Planning Natural Resource and Environment ref. 1009/8328 dated 28th September 2006
Attached: 1. Conditions that View Talay Jomtien Beach Condominium Project (Project 7) of View Talay Jomtien Condominium (1999) Co., Ltd. must strictly be adhere to.
2. Guide in submission of report on actions taken as per method of prevention and rectification effects on environment and method of follow up inspection on quality of environment
With reference to the mentioned letter the Office of Policy and Planning Natural Resource and Environment has advised the results of consideration of the report of the analysis on effects on the environment View Talay Beach Condominium Project (Project 7) of View Talay Jomtien Condominium (1999) Co., Ltd. situated at Tappraya Road, Nongprue sub-district, Banglamung district, Chonburi province, size of plot 11-1-75.3 rai on Title deed No. 123238 and 104606 consisting of 1 building, 936 units reported by A.P.S. Consulting Service Co., Ltd. which the committee of experts in consideration of results of analysis on effects on the environment in residence projects. At the meeting 11/2549 on 14th September 2006 it was resolved that the secretary to proceed in accordance with the committee of experts whereby the owner of the project and the consulting company were invited to explain methods of prevention and reduction of effects on the environment to the petitioners or representative and to submit further report on results of proceedings fully and to submit to the office to proceed in steps of consideration. Then A.P.S. Consulting Service Co., Ltd., recipient of Power of Attorney from View Talay Jomtien Condominium (1999) Co., Ltd. had submitted further explanation on the results fully as requested by the office to be able to consider per steps in consideration. The office has checked the said extra documents and found them to be in order as required by the committee of experts.
The Office of Policy and Planning Natural Resource and Environment would advise the resolution of the committee of experts in consideration of results of analysis on effects on the environment in residence projects concurred with the report of analysis of effects on the environment View Talay Beach Condominium Project (Project 7) and for the project to adhere to the conditions applicable to View Talay Beach Condominium Project (Project 7) who must strictly comply with and the project shall submit the results of operations in the application of method of prevention and rectification, the effects on the environment and method of follow up on quality of the environment as per detail attached 1 and 2. Over and above this the project shall coordinate with the person making the report in proceeding to gather all data in detail in order for consideration of the committee of experts, compile it as a completed report together with a disk (CD-ROM) in the form of Digital File (pdf) Adobe Acrobat and submit to the office within 1 month so as to be used of Policy and Planning Natural Resource and Environment of Policy and Planning Natural Resource and Environment as reference and to distribute to other related units.
Please be advised accordingly.
Yours faithfully,
(Mrs. Nisanart Sathirakul)
Deputy Secretary
Acting of behalf of the Secretary
Office of Policy and Planning Natural Resource and Environment
COCUMENT ATTACHED 7
Ref. Chor. Bor. 0020/394
Office of Civil Engineering and City Planning
Montasevi Road,
Chonburi 20000
25th April 2007
Re: The checking of the value of mean sea level
To: The Mayor, Pattaya City
In reference to: City Hall, Pattaya letter ref. Chor. Bor. 52303/3088
Dated 20th April 2007
Attached: 1. Area map 1 piece
2. Copy of Title Deed 1 piece
3. Calculations on value of level 3 pieces
With reference to the above letter to Pattaya City requesting the Office of Civil Engineering and City Planning, Chonburi province to proceed to prove the value of the mean sea level (MSL) in the area of beach front Na Jomtien in front of the construction project under dispute between Mr. T. a. J Maria and group, 10 altogether and Pattaya City, View Talay Jomtien Condominium (1999) Co., Ltd. details of which have been advised.
Office of Civil Engineering and City Planning, Chonburi province has checked and considered the said matter, details of which can be found attached herewith.
Please be advised accordingly.
Yours faithfully,
(Mr. Tanoo Srichoo)
Civil Engineer and City Planning, Chonburi province.
Civil Engineering Technical Group
DOCUMENT ATTACHED 1
Ref. Chor. Bor. 52303/5548
City Hall, Pattaya City
Pattaya North Road,
Banglamung ,
Chonburi 20260
9th September 2005
Re: Request for ruling on distance of 100 m. from mean sea level
To Mr. Kriengchai Panichpakkdi
In reference to: Letter from View Talay Jomtien Condominium (1999) Co., Ltd. dated 27th August 2005
Attached: Copy of Title Deed No. 104646
Where View Talay Jomtien Condominium (1999) Co., Ltd., represented by Mr. Kriengchai Panichpakdi, director, owner of land under Title Deed No. 104646, Nongpure sub-district, Banglamung district, Chonburi province had requested Pattaya City to check the distance 100 m. from the mean sea level as per referred to detail.
Pattaya City has checked and set the distance of 100 m. from the mean sea level as per attached detail.
Please be advised accordingly.
Yours faithfully,
(Mr. Niran Wattanasartsathorn)
Mayor, Pattaya City
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