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