VT7 has filed a Appeal to the Bangkok Supreme Administrative Court asking for permissions to Start back to work while the finely court decision is decided. I been ask to share our answers to the Bangkok Supreme Administrative Court. Your many read below.
Black Case No. 54/2550
Motion Replying to an Appeal
The Administrative Court of Rayong Province
Date 11 June 2007
Mr. T. No. 1 and 10 Associates Litigants
Between
Pattaya City Local Official First Prosecuted Person
View Talay Jomthien Condominium (1999) Second Prosecuted Person
The undersigned, is the legal representative of Mr. T. No. 1 Litigant and 10 Associates , by Mr. Amnaj Thiengtham, the authorized person from the litigants, has received the Appeal Motion to set forth the provisional measures before judgment filed by No. 2 prosecuted person on 2 June 2007. I would clarify the following statement based on the hereunder reasons in replying to the Appeal Motion filed by him.
The provisional order before judgment released by The Administrative Court of Rayong Province granted to the litigants was very fair and justify. The 10 litigants shall support fully to the Court decision on the following grounds:
The ten litigants filed the prosecution against Pattaya City local official as the only prosecuted person. The Administrative Court of Rayong later on ordered the second prosecuted person to be the jointed prosecuted person. The litigant originally filed the charge on the ground that the prosecuted person No. 1 issuing Construction Permit No. 162/250 dated 28 November 2006 to View Talay Jomthien Condominium (1999), the prosecuted person No. 2, to construct a permanent big-sized, high-rise, residential building consisting 912 condominium
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units, 24 commercial units, 27 storey high with roof deck, of 101,469 square meters space complete with parking area of 11,708 square meters (418 car parking capacity), with 1,134 square meter swimming pool, connected to Jomthien Beach, Pattaya City. The ten litigants as well as other residents of Jomthien Complex Condotel shall be damaged from scenery, and wind blow blocked up by the construction of the new residential building.
The impact shall also incur to many other residents in the same area even that they have not yet filed the case with the Administrative Court .
The ten litigants were of the opinion that Pattaya Muncipal Official, who is the authorized person to consider and grant Construction Permit under the provision of Condominium Act B.E. 2522, had breached his statutory duty by mean of inconsistence to the appropriate consideration and measures prescribed under the Ministerial Regulation No. 9 (B.E. 2521) issued under the virtue of the Construction Control Act B.E. 2479 Article 3 restricting the 200 meter no construction zone shown in the Map annexed to the Royal Decree to enforce the Construction Control Act B.E. 2479, governing the areas of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua, Tambol Nhong Prue, Ampur Bang Lamung, Chonburi Province at the seaside, to be No-Construction Zone. The Sub-Section 8 also restricts that construction application of building exceeding 14 meter high from road level shall not be granted. The announcement has come into enforcement since 23 November 1978 and still valid up to now without correction or amendment.
After the plaintiff and temporary protection motion received by the Administrative Court of Rayong Province , the Court then order the hearing schedule on 28 March 2007 .
The 10 litigants agreed with the judgment of the Administrative Court that the judgment released was in fair justice complete with reasonable grounds. The charge was filed with Court and the Administrative Court of Rayong Province and the plaint was accepted by the Court on 12 March 2007 . The Court issued its appointment for hearing on 16 March 2007 . The provisional measures before judgment were released on 28 March 2007 . When the Court had its hearing on both parties, issued the provisional measures before judgment to
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temporarily cease the construction granted by the Permit License No. 162/250 dated 28 November 2006 until further order on 9 April 2007 taking as much as 12 days so that the Court was very fair to both parties. The methods of hearing, the taking of evidence reflected that the first prosecuted person failed to satisfy the Court with relevant law, i.e. Mr. Pornsak Piyakamolrat, the Civil Engineer Grade 7, the proxy of the first prosecuted person testified on Ministerial Regulation No. 8 (B.E. 2519) and Ministerial Regulation No. 9 (B.E. 2521) issued under the virtue of the Building Control Act B.E. 2547, still valid under the Ministerial Regulation No. 8 setting 100 meter distance from the construction control area, but later amended by the Ministerial Regulation No. 9 increasing the distance to 200 meters. Mr. Pornsak merely vaguely claimed that the measurement from the construction area under Ministerial Regulation No. 8 and No. 9 remained to be 100 meters. But the Ministerial Regulation (amended) was measured at 100 meters extended into the sea without clear provision of the law he referred while being testified in front of the Court. Because unless otherwise the Regulation No. 8, while being updated to No. 9, based on whatsoever reasons to set 200 meter standard from construction control area. His evidences taken in front of the Court was unable to finalize the matter, but only mixed with his statement of additional 100 meter distance was measured from the average seatide or from the construction control area into the sea of 100 meter far to make the total 200 meters as prescribed by the Ministerial Regulation No. 9. Mr. Preecha Techamuanviyavit, the authorized representative from the second prosecuted person equally failed to testify in favour to this case. The Court’ order to cease the construction is, therefore, regarded to be fair and correct.
The second prosecuted person claimed that the Construction Permit issued by the local official of Pattaya City was in line with the proper procedures set by law. The Official has no whatsoever benefits from the second prosecuted person. This matter is proven by the ten litigants in the Court that the permission of construction permit was executed in a doubtful manner or not. The Permit was released on 29 November 2006 with the Permit No. 162/2550. Actually, the Permit No. should read No. ………. / 2550.
The second prosecuted person claimed that Mr. Amnaj Thiengtham, the legal representative of the litigants, the point of measurement of the 200 meter distance, under the provision of the Ministerial Regulation No. 9, the average seawater point means the lowest seatide point, which shall effect the construction point of 200 meter no-construction zone if measured from there.
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This statement was untrue. The fact was that Mr. Amnaj Thiengtham testified that even though measuring from the average seawater point, meaning the lowest seaside, if measured to the building construction point, the building is well within 100 meters and not 200 meters.
When the letter of Mr. Kriengchai Panichpakdi, the owner of the land on which the building is to be constructed, is considered, the owner requested Pattaya City to examine the 100 meter distance from the land. Considering the map on 100 meter concern as requested, the distance of 100 meter line was already extended into part of the land of construction. If further 100 meter is measured according to the Ministerial Regulation No. 9, it is clearly that the line of the second 100 meter almost went through the whole piece of land. This verifies that the land of the prosecuted person can never build a 27-storey building according to law.
The prosecuted person also claimed that on 20 November 2006 , the specialist committee on environmental had passed the consent that the construction shall not impact environment according to the study of the committee. The Office of the Natural Resources and Environmental Policy and Planning has concurred to the construction (Annex No. 2 refers). When considering the document, it was prepared by private organization, S.P.S. Consulting Service Co., Ltd., and presented to the meeting secretary for approval to match with the resolution of the specialist committee. This was arranged to look as if the study was made from the prearranged document. The consent was approved to the construction of the project owned by the second prosecuted person. The litigants were of the opinion that the study was not actually carried out by government unit, not by the Office of the Natural Resources and Environment Policy and Planning, or by Pattaya Municipal Office. The ten litigants did not agree that this is not the end of the story. The second prosecuted person is obliged to submit subsequent reports to the committee until the construction is complete. Up to this moment, there has no evidence to verify that the report on environmental impact of the construction project of the second prosecuted person is free from defects or was revoked, as there are no any government units were assigned to examine the standards according to the application submitted with the Office of the Natural Resources and Environmental Policy and Planning. This is the most crucial issue that all ten litigants would emphasize the Administrative Court to focus and judge the revoke of Construction Permit granted to the second prosecuted person accordingly. The next issue that claimed by the second prosecuted person that should the Administrative Court of Rayong Province’s order the provision measure before judgment continues, not only unfair and damage shall affect the second prosecuted person, but the first prosecuted person shall also be damaged such as Pattaya City’s image or reputation. Pattaya City might be sued against a big amount of money. The legal action might be involved other third party persons.
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In the eyes of foreigners, the country’s image shall also be ruined. The second prosecuted person also referred to the very high cost of the project investment. Construction cost was estimated at 10,000 baht per one square meter. The whole project, based on this price, shall be 1,155,720,000 baht in total. Construction has started in some parts of the project worth about 100 million baht. The Court’s order to temporarily suspend the construction shall lead to damage and against the stated conditions in the Construction Permit.
The ten litigants would respectfully advise to the Supreme Administrative Court that the prosecution of this case was filed rightfully on the basis of Public Law which covers the protection of public interest which must be supported by the state. The Public Interest under the Public Law is more important than private interest. The interest of the second prosecuted person, a private person, is less important than public interest. The reason of suspending the construction was based on the fact that the building is so huge and 27-storey high, having 912 residential units, 24 commercial shops, total area of 101,469 square meters, parking space of 11,708 square meters for 418 cars, swimming pool of 1,134 square meters, pipeline of 1,126 meter long. The first and second prosecuted persons ought to be very careful when considering issuing Construction Permit and the business execution of the second prosecuted person must not be inconsistent to law governing high-rise building in terms of obstruction to wind direction, scenery of sea view to other buildings resulting in many negative impacts to infringe the right of nearby residents. Both prosecuted persons did not give clear evidences to Court at the hearing to answer the Court’s question of the exact point to measure the 200 meters under the Ministerial Regulation amended to Ministerial Regulation No. 9 B.E. 2521. The preparation of document stating 200 meter measuring point clarified to the Appeal Court of Rayong Province on 4 April 2007 (Annex No. 1) was to explain the average seawater level, i.e. the highest and the lowest tides. The claiming was on the construction control line stated on the map annexed to the Royal Decree Controlling The Building Construction B.E. 2479 also prescribed that the 100 meter line were set without dotted line to explain the control line extended of another 100 meters into the sea to make the distance total becomes 200 meters by the meaning of the Ministerial Regulation No. 9 (B.E. 2519). Besides, the second prosecuted person referred to the inquired letter sent to the Office of the Civil Works and City Planning of Chonburi Province on the searching of average seawater level (Annex No. 7 to Appeal Documents) without inquiring about the construction control line as prescribed under the Ministerial
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Regulation No. 8. The inquiry was requesting about the assistance to find out the average sea level (MSL) at Na Jomthien Beach area. The answer remained the same, i.e. the construction of the second prosecuted person is within the 100 meter line from MSL and not from the construction control line under the Ministerial Regulation No. 8 and 9. Other crucial point is the Ministerial Regulation No. 9 Special Issue page 6 Volume 95 Section 157 announced in the Government Gazette dated 31 December 1988 did not contain the clear explanation or confirmation on the 100 meter line into the sea to be added to the original 100 meter line. The provision in this Regulation mentioned about the seaside only. It is therefore assumed that the first prosecuted person interpreted the contents by himself without giving contradict to the Construction Permit No. 162/2550 released the reason of over 100 meters.
The 100 meter line prescribed under Ministerial Regulation No. 8 enforced in1976 then amended by the Ministerial Regulation No. 9 two years later. The first prosecuted person claimed that according to the spirit of the law that the distance of 100 meter from the construction control area, when amended, by the Ministerial Regulation No. 9, remain unchanged. Where the two laws refer the same distance of 100 meters, there should not good reason to change the distance to 200 meters. This statement of the first prosecuted person, therefore, was not entirely believed by the Administrative Court of Rayong Province . The Court believes that the law should have good reason for amending the Ministerial Regulation from No. 8 to No. 9. The measuring point from construction control area or from the coastline of MSL must be clearly identified. The information presented by the ten litigants that the construction of the second prosecuted person, if 100 meter line measured from the MSL, then extruded the Land Title Deed of the second prosecuted person.
The Appeal of the second prosecuted person filed with the Supreme Administrative Court contains steps of laws and supported with chart and map to explain to the Court that Pattaya City and The Civil Works and City Planning Office of Chonburi Province are government units. The 100 meter line from MSL should be correct without any suspicion. The claim that the measurer shall not be bound to civil or criminal offense was only understood of discussion and inquiring points by the second prosecuted person. It is not the
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offense of the first prosecuted person or the Office of Civil Works and City Planning of Chonburi Province . It was merely the discussion and inquiry on the measurement from MSL. However, the Ministerial Regulation No. 8 in corroboration with No. 9 mentioned clearly that the 100 or 200 meter line must be measured from the construction control at the distance of 200 meters and not from the MSL as inquired and discussed. Where the Construction Permit was granted by Pattaya City to the second prosecuted person by fixing the measuring line of 100 meters from MSL, the issuing as such shall not be deemed as correct under the condition and procedure of issuing Construction Permit to the second prosecuted person prescribed by the Ministerial Regulation No. 9
The map annexed to the Royal Decree on Construction Control B.E. 2479 governing Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua, Tambol Nhong Prue, Ampur Bang Lamung of Chonburi Province under the Ministerial Regulation No. 8 in corroboration with No. 9 was shown in the scale of 1 : 50,000. It is therefore necessary to have an expert to identify the starting point of measurement from the construction area for the precision of law enforcement on 200 meter line. The answer made by either the first or second prosecution person was not clear.
Where the ten litigants referred to the satellite photo measured from the construction line that the distance is only 100 meters and not 200 meters set forth by the Ministerial Regulation No. 9. (Refer to the Annex to the replying to an Appeal No. ………….).
The definition of “Construction Control Boarder Line” under the Construction Control Decree B.E. 2479 or the Construction Control Decree No. 2 B.E. 2504 or the Ministerial Regulation No. 8 B.E. 2519 or the Ministerial Regulation No. 9 B.E. 2521 or other relevant Ministerial Regulations do not have clear prescription on the construction control line and how the measurement be properly done. It is the duty of the government official or the second prosecuted person to search the fact on this “Matter of Law” to present the Court in justification of unequivocal that the Construction Permit was legally issued.
Other facts that presented to the Court by the second prosecuted person ranging from No. 12 (1) (2) (3) (4) (5) and (6) respectively have been pleaded
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by the ten litigants for justice and clear explanation from government units, government officials, but their requests were not responded and clarified under the extent of law. It is logical that the ten litigants shall bring this matter up to seek fairness and justice from the Administrative Court who is the last dependable institution of damaged people. Should the government officials or government units respond clearly and be helpful to them in the first place, there should not be this case brought up to this Court.
In view of the foregoing, I would be grateful if the Administrative Court of Rayong Province should affirm its Order dated 9 April 2007 that the second prosecuted person cease the construction of the building under Construction Permit No. 162/2550 dated 28 November 2006 until the Court orders otherwise.
Signed ………………… Authorized Person by the Litigants
(Amnaj Thiengtham)
Asia LawWorks
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