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
group, 10 in all plaint makers
Between
Competent Officer of locale of Pattaya City 1, plaint receivers
View Talay Jomtien Condominium (1999)
I, View Talay Jomtien Condominium (1999)
would submit an Appeal to the order to temporarily grant to the plaint makers before the
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.
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
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
(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.
(4)
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.
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.
(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
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
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
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.
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
(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)
(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
And
There was another letter dated the same day addressed to the mayor of
(4)
(5)
(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)
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,
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
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
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
Chonburi 20000
Re: The checking of the value of mean sea level
To: The Mayor,
In reference to: City Hall, Pattaya letter ref. Chor. Bor. 52303/3088
Dated
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.
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,
Banglamung ,
Chonburi 20260
Re: Request for ruling on distance of 100 m. from mean sea level
Please be advised accordingly.
Yours faithfully,
(Mr. Niran Wattanasartsathorn)
Mayor,
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