100 meter from MSL compared to 200 meters from MSL

Double click on photo to enlarge size.

August 8 Admin Court hearing in Rayon has not concluded our case

Pattaya City hall and VT7 could not agree with Department of Civil Engineering and City Planning from Bangkok explanation of issue 9. They keep confusing how to measure from MSL.

The Bangkok man could not answer any of the judge’s questions which were not written in his office letter. This left unanswered questions.

The court is going to order the Thai Port Authority and the Bangkok Department of Civil Engineering and City Planning to take measurement and make a map for the court. The map will show where VT7 building is located as to issue 9 alignment.

The stopvt7 group is going to hire an expert to watch over the taking of measurement and making of the map.

VT7 can keep working but not build over 14 meters high.

Their will be another court hearing.

The Bangkok letter form Department of Civil Engineering and City Planning explains the following?

1. The distance of 100 meters in Issue 8 and the distance of 200 meters Issue 9 are not the same alignment.
2. Issue 9 specified that the measurement of the alignment of the cost line be taken only at MSL (mean sea level). This setting 200 meters measured from MSL for alignment of alignment before you can build over 14 meters.
3. City Hall and VT7 as made false claims in court by claim Issue 8 and Issue 9 as the same alignment before you can build over 14.

Quote from Mr. Surapol 19 of June 2007 Department of Civil Engineering and City Planning Bangkok letter: “The distance of 100 m as per point 3 of the Ministerial Regulation Issue 8 (B.E. 2519) issued pursuant to the Building Control Act B. E. 2479 and the distance of 200 m. as per point 3 of the Ministerial Regulation Issue 9 (B.E. 2521) issued pursuant to the Building Control Act B. E. 2479 are not the same alignment. In that the alignment of the coat line in accordance with the Ministerial Regulation Issue 8 (b. E. 2519) had not specified the measurement be taken at MSL. But in accordance with the Ministerial Regulations Issue 9 (B. E. 2521) it specified the measurement of the alignment of the coast line be taken only at MSL.”

Chief Engineer Acting on Behalf of the Director General
Department of Civil Engineering and City प्लानिंग

Where was in writing the claim to measure into the sea started? It was from Pattaya City Hall Explanations to the court. Fine a English translation below!


Asia LawWorks Co., Ltd.

A t t o r n e y s – a t – L a w
R e c h t s a n w ä l t e


TRANSLATION OF BLACK CASE NO. 54/2550
EXPLANATION OF CITY HALL DATED 4TH APRIL 2007


Garuda
Royal Insignia
Explanations Case Black Number 54/2550

Administrative Court, Rayong

4th April 2007

Mr. T….. A, Jo, Maria 1 and Group, 10 in all plaint makers

Between

Competent officer of locale of Pattaya City 1
And group altogether 2 plaint receivers

I, the competent officer of locale of Pattaya City, Mr. Niran Wattanasartsathorn, plaint receiver, address Pattaya City Hall, North Pattaya, Nongprue, Banglamung, Chonburi 20260 Tel. 038-253242-3 have understood the plaint throughout and would like to give explanations and facts as follows:

1. Mean sea level means the average of sea water at high tide and low tide calculated by the Department of Hydrography of the Navy with a point of reference at Koh Lak, Prachuab Kiri Khan province and used this level as the reference point in Thailand, for instance at the Land Office there shall have a mean sea level as point of reference to be referred to (as per document 1).
2. According to the Ministerial Regulations Issue 8 (B.E. 2519) issued pursuant to the Buildings Control Act B.E. 2479, point 3 stipulating an area within 100 m. measuring from the building construction control line as per map attached to the Act, effective as the Buildings 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.2479 on the seafront side a building having the height above 14 m. from road level may not be erected. The alignment of the buildings construction control pursuant to the Ministerial Regulations Issue 8 was the same alignment with the alignment of the coastline at the median sea level as per map attached to the Act above.
3. According to the Ministerial Regulations Issue 9 (B.E. 2521) issued pursuant to the Buildings Control Act B.E. 2479, point 3 stipulating an area within 200 m. measuring from the building construction control line as per map attached to the Act effective as the Buildings 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.2521 on the seafront side a building having the height above 14 m. may not be erected. The alignment of the buildings construction control pursuant to the Ministerial Regulations Issue 9, there had been an alteration to the plan attached to the Act stipulating the alignment of the building construction control line measuring seaward from the shoreline at the median sea level MSL a further 100 m. as the starting point of the alignment of the building construction control area. When there had been an extension of the alignment of the building construction control area stipulating the area within 200 m., measuring from the building construction control line was an area where a building having the height above 14 m. from road level may not be erected, according to the map attached to the Act the seashore where the median level of the sea was thus the same alignment with the Ministerial Regulations Issue 8. Therefore the alignment of the building construction control line then was extended seaward for 100 m. from the seashore at the mean sea level and on land the stipulated alignment was the original 100 m. as per the Ministerial Regulations Issue 8. If stipulated within 200 m. from the building control line as the end of the improvement to building zone the alignment forbidding construction, land side, as per Ministerial Regulations Issue 8 and Ministerial Regulations Issue 9 are then the same alignment.

4. The case of Rim View Talay Jomtien Condominium (1999) Co., Ltd. had submitted a letter dated 27th August 2005 for Pattaya City Hall to inspect the 100 m distance from the median sea level for Title Deed 104646, Nongprue sub-district, Banglamung district, Chonburi province. Pattaya City Hall had entrusted Mr. Chavalit Jariyabanjong in the position of Traffic Researcher 6 (Vor) to determine the distance of 100 m. from the alignment of the sea shore at median sea level holding the base marker in the area of the Meteorological Station, Khao Thappraya which the Navy had transferred the level value from Koh Lak in Prachuab Kiri Khan province. Pattaya City had therefore used the said basic level to find the mean level of the sea for Title Deed No. 104646, Nongprue sub-district, Banglamung district, Chonburi province of View Talay Jomtien Condominium (1999) Co., Ltd. (as per document attached No. 2).
5. The legal section has found the definition of mean sea level from the forestry technical survey, forestry engineering branch, forestry faculty, Kasetsart University who stated that the mean sea level was the average of the highest and the lowest tide levels of the sea. This mean level is considered international but it did not mean that the mean sea level was the same all over the world. The difference on mean sea level in America between Pacific ocean and Atlantic ocean differed about 1 m. (as per attached document No. 3)

Signed ………………………. Statement maker
(Mr. Niran Wattanasartsathorn)
Mayor Pattaya City


This explanation I, Miss Benjawan Chinnapat, lawyer 4 , Pattaya City was the arranger and typist.



Signed…………………………. arranger/ typist
(Miss Benjawan Chinnapat)
Lawyer 4


Garuda
Royal Insignia
Ref: Chor. Bor 52303/5548 Pattaya City Hall
North Pattaya Road
Banglamung,
Chonburi 20260

9th September 2005

Re: Please advise the 100 m distance from the median sea level

To: Mr. Kriengkrai Panichphakdi

In reference to: Letter from View Talay Jomtien Condominium (1999) Co., Ltd dated 27th August 2005

Enclosure: Copy of Title Deed 104646, 1 copy

In response to the request from View Talay Jomtien Condominium (1999) Co., Ltd., represented by Mr. Kriengkrai Phanichphakdi, Director, owner of Title Deed No. 104646, Nongprue sub-district, Banglamung district, Chonburi province to investigate the distance of 100 m. from the median sea level, Pattaya City has investigated and stipulated the distance of 100 m. from the median sea level as per detail attached.

Please be advised accordingly.


Yours sincerely,


Mr. Niran Wattanasartsathorn
Mayor, Pattaya City

Buildings Control Section and City Planning Signed
Civil Office, Pattaya City Mr. Pornsakdi

1 of August 2007 Supreme Admin Court Con conclusion!

The Supreme Court, therefore, gives an order to amend the order of the Administrative Court of First Instance. That the Defendant No. 2 shall cease the construction performed, under the Work Permit No. 162/2007 dated 28 November 2007, on the part exceeding 14 meter height। On a temporary basis until the Court has ordered otherwise.

Ministerial Regulation Issue 9 (B.E. 2521) under the Building Construction Control Act B.E.2479 allows for building up to14 meters high from road level.

Supreme Administrative Court decide was read and give in Rayon on 1 of August 2007.

The following is an English translation of the court last 3 pages of their order:

The point to be considered further is that whether it is reasonable and justified to apply provisional measure or temporary safeguard before judgment as requested by the ten plaintiffs. The judge considered that while the plaintiffs are filing the case, the building is being constructed by the Defendant No. 2. The construction is preparing the land site, foundation piles are being knocked down into the base soil. The knocking was so hard that the condominium of the ten plaintiffs was cracked. Construction was processed without dust cover or protection resulting air pollution. While the Administrative Court of First Instance examining the parties to apply the temporary protection or provisional measure before judgment, the lawyer authorized by the ten plaintiffs testified that the construction has already passed the foundation piles knocking. Pillars are being formed up. This verifies that the Defendant No.2 intends to continue the construction. The plaintiffs, who live in Jomthien Complex Condotel Condominium, as well as other neighbouring residents in the construction areas, can possibly be suffered and damaged from the construction as being stated in the motive, i.e. while the building going taller or higher, the wind direction from Jomthien sea can change its direction and not blowing towards Jomthien Complex Condotel like before. The sea scenery shall be blocked off by the new building disrupting the good health of the existing residents. As the building being constructed by the Defendant No. 2 is as high as 27 storeys, or about 81 meters which is close the height of the condominium being stayed by the plaintiffs. Therefore, if the construction of disputed building continues, it is difficult to remedy the problem at a later date because if the Court revokes the construction permit at the end of the trial, the building shall be demolished accordingly to the Court’s order. The demolishing should require long period to accomplish. As long the building was not completely demolished, the ten plaintiffs shall be suffered by the building. Besides, the demolishing cannot serve as the remedial action to the disturbance or damage the plaintiffs have already suffered before the demolishing completed.

The circumstance is justified to the Court to order provisional measure, or give temporary protection before judgment that the Defendant No. 2 temporary ceasing the construction of the building according to the Construction Permit No. 162/2007 dated 28 November 2006 until the Court gives judgment or orders otherwise.

The last question to be considered is that whether the provisional measure before judgment shall render negative effect to the Defendant No. 1 on their routine administration. The consideration was that when the Court has the order to give temporary protection and issuance of the provisional measure to cease the construction of the building is only involved with the construction work at the site. There is nothing to enforce or change or to affect whatsoever to the Work Permit that the Defendant No. 1 issued. Therefore, the Court’s order is not interfering with the administration of the Defendant No. 1

Nevertheless, where No. 3 (8) under the Ministerial Regulation No. 8 (B.E. 2519) issued by the virtue of the Building Control Act B.E. 2479 amended by the Ministerial Regulation No. 9 (B.E. 2521) issued by the virtue of the Building Control Act B.E. 2479 prescribed that the 200 meter line measured from the construction control line shown in the map annexed to the Royal Decree promulgating the Building Control Act B.E. 2479 governing Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klue and Tambol Nhong Prue of Ampur Bang Lamung Chonburi Province B.E. 2521 on the seaside shall be restricted from constructing of any building exceeding 14 meter high from road surface. Therefore, if the Construction Permit No. 162/2007 dated 28 November 2006 granted by the Defendant No. 1 to the Defendant No. 2 should appear to be unlawful against the Ministerial Regulation thereto as being claimed by the ten plaintiffs, the Court of First Instance should have sentenced this point of being unlawful, i.e. the judgment shall be focused on the permission of construction the building exceeding height limit by the Defendant No. 2. Whilst the Administrative Court of First Instance ordered the provisional measure to cease construction before judgment, the building’s base rocks were built, the construction did not reach the height limit of 14 meter above the road surface. Where the Administrative Court of First Instance issued the order of provisional measure to effect temporary protection by ceasing the entire construction is, therefore, in excess of what reasonable under the circumstances.

The Supreme Court, therefore, gives an order to amend the order of the Administrative Court of First Instance. That the Defendant No. 2 shall cease the construction performed, under the Work Permit No. 162/2007 dated 28 November 2007, on the part exceeding 14 meter height. On a temporary basis until the Court has ordered otherwise.

Mr. Vorapoj Visarutpich

Judge of Supreme Administrative Court

Mr. Amnaj Singgovin

Chief Judge of the Supreme Administrative Court

Mr. Vichai Chuenchompoonuj

Judge of Supreme Administrative Court

Mr. Paiboon Siengkong

Judge of Supreme Administrative Court

Mr. Udomsak Nimitmontri
Judge of Supreme Administrative Court

Bangkok Post Business Section of August 2, 2007

http://www.bangkokpost.com/Business/02Aug2007_biz99.php

PROPERTY / JOMTIEN COMPLEX

Pattaya high-rise protesters win court battle

Residents of the Jomthien Complex Condotel have won a case at the Bangkok Supreme Administrative Court affirming their request for a temporary halt to the construction of a high-rise condominium on Jomthien beach in Pattaya.

The court upheld the decision of the Administrative Court in Rayong in a dispute that centred on the construction of the 1.15-billion-baht View Talay Jomthien Project 7, which would rise 27 storeys or about 81 metres.

The final hearing on whether the project could proceed in its present form is scheduled to be held in the Rayong Court next Wednesday.

The dispute centres on whether a project of the height in question could be constructed at the location, as the 10 plaintiffs argued that buildings cannot exceed 14 metres in height on the site because it is less than 200 metres from the mean sea level.

View Talay Jomthien Condominium (1999) Co Ltd, the project's developer, explained to the Supreme Administrative Court that halting construction would cause damages of about 500 million baht to the company.

When the court in Rayong issued its injunction to halt the construction in April, the company had already invested about 100 million baht in the project, which is scheduled to be complete in 2009. Therefore, the company appealed the decision of the Rayong court and asked to continue with the construction.

Richard Haines, one of the plaintiffs, said the Supreme Administration Court's decision upheld the Interior Ministry's regulation No. 9, announced in 1978, which allows only buildings of no more than 14 metres high to be built in areas 200 metres from the mean sea level.

''View Talay started its 27-storey building at 100 metres from the mean sea level, so the project is 100 metres too close to the shoreline,'' he said.