We filed Explanations Administrative Court

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Explanations

The Administrative Court of Rayong Province

Date: 31st August 2007

Mr. Aloysius Joannes Maria Tenbuelt No.1 and 9 Associates Litigants

Between

Pattaya City Local Official First Prosecuted Person

View Talay Jomtien Condominium (1999) Co., Ltd. Second Prosecuted Person

The undersigned is the legal representative of Mr. Aloysius Joannes Maria Tenbuelt, the No. 1 Litigant and 9 Associates, by Mr. Amnat Thiengtham, LL.M, the authorized person from the litigants, has received the Testimony of the First prosecuted Person dated 19th July 2007 on 26th July 2007. I would clarify the following statements made by the First prosecuted Person based on the hereunder mentioned reasons.

1.) The provisional order before judgment released by The Administrative Court of Rayong and the modified provisional order before judgment by the Supreme Administrative Court of Bangkok granted to the litigants was very fair and justified. The 10 litigants shall support fully to the Courts decisions.

2.) The 10 litigants would like to respond to the testimony of the authorized person of the First Prosecuted Person, Mr. Chatri Srivises, as follows:

The ten litigants would respectfully advise to the Administrative Court that the prosecution of this case was filed rightfully as the First prosecuted Person did not follow the steps and procedures necessary in considering the application for construction as prescribed in the Ministerial Regulation No. 9 (B.E. 2521) issued by the virtue of the Building Control Act B.E. 2479 and Mr. Amnat Thiengtham would like to clarify as follows:

The representative of the First Prosecuted Person reported in his testimony that the construction permit No.: 162/2007 was granted to the Second Prosecuted Person based on the usual procedures and steps as described in his testimony dated 19th July 2007.

According to the letter dated 22nd December 2006 by the Mayor of Pattaya Mr. Niranad Wattanasartsathorn addressed to the co-owners of Jomtien Complex it is outlined that the planed 27 storey condominium as planned by the Second Prosecuted Person must comply wit the Ministerial Regulation No.8 (B.E. 2519 issued by the virtue of Section 15 under the Building Control Act B.E. 2479.

Annex 1: Letter dated 22nd December 2006 by the Major of Pattaya.

This leads to the question how the First Prosecuted Person could possibly issue the construction permit in question in a legal way as Ministerial Regulation Issue 8 is overruled by Ministerial regulation Issue 9. We would kindly draw the attention of the court to the fact that the construction permit No. 162/2007 could not have been issued under the said Ministerial Regulation No. 8 but instead Ministerial Regulation No. 9 (B.E. 2521) must apply when considering the issue of a construction permit for the planed high rise building of the Second Prosecuted Person. During the course of the legal procedures the First Prosecuted Person agreed that Ministerial Regulation No. 9 (B.E. 2521) is applicable for the question if a construction permit can be legally issued or not.

Annex 2: Court protocol dated 28th March 2007 and 8th August 2007

The whole explanation of the First and Second Prosecuted Person until today shows an impressive lack of continuity.

1.) After the first hearing at the Administrative Court on 28th March 2007, the First Prosecuted Person gave an explanation on 4th April 2007 on how to do the measurement as the First Prosecuted Person interprets the law. We would kindly like to mention that this legal case issues with all parties involved a great amount of concern as the given Ministerial Regulation Issue 8 (B.E. 2519) in it alone do not provide a clear answer. Therefore the need of obtaining Expert Witness Reports such as the Department of City Planning in Bangkok was necessary and obtained by the Court accordingly.

Annex 3: Letter of the Department of Civil Planning Bangkok Mor Thor __, dated ___.

The First prosecuted Person is therefore in no position to determine without doubt to describe the measurement. The First Prosecuted Person can only present its legal opinion. The map attached to Ministerial Regulation Issue 8 only shows the “border of control construction.” This is not a measure point as the Department of City Planning in Bangkok agreed in the meantime. The follow-up explanation that the extension of 100 Meters to 200 Meters (from Ministerial Regulation Issue 8 to Ministerial Regulation No 9) does also extend the measure point is not correct. It simply widens by “extending the restricted construction areas appeared in the map.” There is no need to measure seawards another 100 Meter as said by the First Prosecuted Person. The 100 Meter remark on the map attached to Ministerial regulation Issue 9 simply states that the distance between the “shoreline at mean sea level MSL” line to the “borderline of the restricted construction area” is 100 Meters. To follow this interpretation of the given legal framework shows absolutely no purpose and in fact breaches the given relevant Ministerial Regulation Issue 9. The First prosecuted Person would measure form “shoreline at mean sea level MSL” 100 Meters into the sea and than measure back the mentioned 200 Meters in Ministerial Regulations Issue 9 onto the land. This would result in a total measurement of 300 Meters (!). How can this be justified by read Ministerial Regulation Issue 9 which says measure 200 Meters only.

Annex 4: See Satellite Map. The red line gives a visual point of view of the First and Second Prosecuted Person’s Legal Opinion.

That this is contradictory was proven by the statement from the Department of Civil Planning in Bangkok which states clearly that the alignment forbidding construction of buildings exceeding 14 Meters on the landside, as per Ministerial Regulations Issue 8 and Ministerial Regulations Issue 9 are not the same alignment. The Second Prosecuted Person explained in its Appeal to the Supreme Administrative Court in Bangkok that the map and therefore the point of measurement must be understood that the alignment of building construction control line on the coastal line was beyond the shore line at Mean Sea Level extending into the sea a further distance of 100 Meter. However, the First and Second prosecuted Persons did not read the Ministerial Regulations Issue 8 and 9 in full detail.

It is important to read the reasons of issuing each regulation. Ministerial Regulation Issue 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 reads under Remarks of the said Regulation: “Note: The reason issuing this Ministerial Regulation is that further to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 applying to some areas of Tambol Bang Lamung, Tambol Na Klua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2499, and the aforesaid areas are open public resorts. It is appropriate that the areas shall not be allow to construct some kinds of building considered to disturb good environment and generating any kind of wastes, pollutions. This Ministerial Regulation is, therefore, issued.”

Ministerial Regulation Issue 9 (B.E. 2521) issued under the Building Construction Control Act B.E. 2479 “Note: The reason issuing this Ministerial Regulation due to the updating of the construction control areas in Tambol Bang Lamung, Tambol Na Khua and Tambol Nhong Prue, by extending the construction restriction areas as appeared in the map annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 controlling over the regions of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521. It is, therefore, appropriate to amend the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 governing restriction of the construction of some kinds of building within the controlling areas under the aforesaid Royal Decree”.

The key points are the updating of the map by “extending the construction restriction areas as appeared in the map annexed to the Royal Decree”. Also to establish by update for Ministerial Regulation No. 8 to giving a definable point for measuring placed on Issue 9 map. This is the “shoreline at mean sea level MSL” on the map for surveyors.

Annex 5: Comparison of the Map attached to Ministerial Regulation Issue 9 to show how the First prosecuted Person reads the map by marking the construction control line in blue color. See Map “A”. However, the First Prosecuted Person does not take into consideration the fact, that the blue line marks the borderline of the restricted construction zone as shown in Map “B”.

It is very important to compare the difference in the two maps issued with each regulation. Ministerial Regulation Issue 8 (B.E. 2519) and Ministerial Regulation Issue 9 (B.E. 2521) issued under the Building Construction Control Act B.E. 2479 have clear differences. The most important one is, that both Ministerial Regulations do only speak of “ked” (NB: The Thai word for territory, land area or zone) and not “sen” (NB: The Thai Word for “line”). Therefore, the Ministerial Regulations have to be red with the meaning of “ked” and that means it must be measured within the territory or “borderline” as written at the map attached to Ministerial Regulation Issue 9. It is therefore quiet obvious that the First Prosecuted Person used the given terminology in the wrong way and therefore created all the present confusion. In the Ministerial Regulation Issue 8 (B.E. 2519) establishes a borderline at the sea side or shoreline but doesn’t reference and measurable point or bench marker to which a surveyor could locate when doing a field measurements. A surveyed need a defendable point or bench marker, such as high tide or mean sea level MSL located at the sea side or shoreline to measure from. It is not clear or how, or possible, city hall surveyors could have ever located any 100 meter measurement when using the Ministerial Regulation Issue 8 as well as the attached Issue 8 map in doing field surveys without a measurable point or bench marker as a staring point.

In the explanations given letter Mor. Tor. 0710/4245 given by the Department of Civil Engineering and City Planning on 19th June 2007 the Chief Engineer Mr. Surapol Pongthaipattana answered to the question by the court under No. 2 that the distance of 100 Meter as per point 3 of the Ministerial Regulations Issue 8 (B.E. 2519) issued pursuant to the Buildings Control Act B.E 2479 and the distance of 200 Meter as per Point 3 of the Ministerial Regulations Issue 9 (B.E. 2521) issue pursuant to the Buildings Control Act B.E. 2479 are not the same alignment in that the alignment of the coastal line in accordance with the Ministerial Regulations Issue 8 (B.E. 2519) had not specified the measurement be taken at MSL,” or any definable point for a field survey but only the “border of control construction” on the Issue 8 map.

It was made very clear after the issuing of Ministerial Regulation Issue 9 map. Issue 9 map defines clearly a marker at the sea side or “shoreline at mean sea level MSL”. With the establishment of a definable measuring point at the “shoreline at mean sea level MSL” it is now possible to make field surveys and make measurements. But it is not understandable as claimed by the First and Second Prosecuted Person why any government body drawing and writing Ministerial Regulation Issue 9 map would want a surveyor to go into the sea 100 meters from mean sea level MSL before measuring onto the land? It is clear however that the arrow on the Ministerial Regulation Issue 9 map is used to define a measure distance to show the extending of the borderline of the construction restriction areas as it appears on the map to protect the environment as the reason claimed for updating the regulation.

Also, by increasing the measurable distance from 100 to 200 meter from MLS mean sea level onto the land for buildings over 14 meters high from the road level. This was done to help protect from disturbing the good environment. Also this protects the sea side areas open to public resorts and for the further citizens of Thailand uses without a concrete wall / jungle of tall condominiums at the shoreline.

The legal representative of the 10 litigants would like to describe the process of obtaining a construction permit under Ministerial Regulation No. 9 (B.E. 2521) and also present to the Court the outcome that it could not be done under the given law.

The legal representative would like to draw the attention of the court of the map attached to Ministerial Regulation No. 8. The map shows the “border of control construction” and set this border around four sides control construction of an area. This borderline can also be found on the Map attached to Ministerial Regulation Issue 9; however, the restricted area was extended an additional 100 Meter only along the coastal areas and not within the landmass such as along Sukhumvit Road. The First Prosecuted Person presented this Map as Testimony under No. 16 and marked only the “borderline of the construction restricted area” at the left on the map which shows the borderline at the seaside. However, to make the “construction restricted area” more clear and visible the representative of the 10 litigants added the same map which shows the complete “construction restricted area”. The blue line only indicates the outline of the “construction restricted area” and bares no relevance to a point of measurement. The green line indicates the “shore line at mean sea level MSL” which marks a definable point. In the order to give explanations by the letter Mor. Tor. 0710/4245 given by the Department of Civil Engineering and City Planing on 19th June 2007 the Chief Engineer Mr. Surapol Pongthaipattana answered to the question by the court under No. 2 that “The distance of 100 Meter as per point 3 of the Ministerial Regulations Issue 8 (B.E. 2519) issued pursuant the Buildings Control Act B.E 2479 and the distance of 200 Meter as per Point 3 of the Ministerial Regulations Issue 9 (B.E. 2521) issue pursuant to the Buildings Control Act B.E. 2479 are not the same alignment in that the alignment of the coast line in accordance with the Ministerial Regulations Issue 8 (B.E. 2519) had not specified the measurement be taken at MSL, but in accordance with the Ministerial Regulation Issue 9 (B.E. 2521) it specified the measurement of the alignment of the coastal line can only be taken at MSL”. Therefore, the logical consequence is that the “shore line at mean sea level MSL” as shown in the Map attached to Ministerial Regulation Issue 9 (B.E. 2521) is equal to the construction control line.

The interpretation of the First Prosecuted Person to measure from mean sea level MSL 100 Meters into the sea to determine the Construction Control Line and than measure back 200 Meters to determine the no-construction zone is contradictory. The Map attached to Ministerial Regulation Issue No. 9 shows clearly an arrow directing you to the “borderline of the construction restricted area” with the dimension of 100 Meters.

Annex 6: See the map attached with visual highlighting of the arrows in questions.

For the convenience of the Court the Arrow and the “100 Meter” remark is shown in red. Directly opposite there is a second arrow directing you to the “shoreline at mean sea level MSL”. The position or arrangements of these two arrow points, opposite of each other, on the map conventionally defines the distance between the “borderline of the construction restricted area” and the Coastal Line at mean sea level MSL is 100 Meters. Because the distance between the two lines is so small, the measurement of the two lines (= 100 Meters) is written at the left hand side. According to Mapping Standards, the distance between two line, provide the lines allow the necessary space is written between the lines, like for instance at the Ministerial Regulation for the use in the Control of City Planning inclusive of Pattaya City B.C. 2546 which shows a measurement of 600 Meters in the light green zone which is earmarked for Open land for Recreation and Protection for Environmental Land.

Annex 7: See extract from the said Map with visual highlighting.

This opinion is supported by other Thai Ministerial Regulations dealing with similar building construction restrictions within the coastal areas as shown as in Ministerial Regulation No. 30 and 31 (B.E. 2534) and can be seen as the intention of the relevant body responsible of drafting these Ministerial Regulations.

Annex 8: See Thai Ministerial Regulations No. 30 and 31 (B.E. 2534) and maps as an example.

Moreover, the handling of the measurement described by the legal representative of the 10 litigants is also in accordance with a practical handling. Assumed the interpretation of the First Prosecuted Person would be followed. The measurement from mean sea level MSL at shoreline would always provide a clear and stable point of measurement with non-doubtful results. To make a second measurement into the sea is nonsensical and would incur additional cost, time and difficulty in addition maintaining accuracy due to the seas perpetual movements, unlike dry land.

Finally, the 10 litigants would like to draw the attention of the court to the simple fact that the First Prosecuted Person never showed any legal purpose of why to measure like it was done in the First Prosecuted Person’s opinion. In the opinion of the 10 Litigants the purpose of Issue 9 was to increase the "construction restricted area" to include 100 meters of the sea along coastal areas, and to change the restriction on construction's above 14 meters from 100 meters to 200 meters from the “shoreline at mean sea level MSL”. One reason to include the sea in the "construction restricted area" is for example Walking Street at Pattaya Beach Road which still to this day has non-maritime constructions entering the sea.

Annex 9: See Satellite Map of Pattaya Walking Street on Beach Road.

"Border line of the construction restricted area" set 100 meters into the sea was also to prevent further violations of this nature. That is why is makes sense that the “construction control line” is located at the “coast line” at MSL between position 2 and position 1. These constructions in Walking Street are reputedly been in violation of the building code. The positioning of “construction control line” located at the “coast line” at MSL between position 2 and position 1, followed by the "borderline of the construction restricted area " being extended out a further 100 meters into the sea, helps prevent further construction violations of this type from being built. Therefore, following these explanations and measuring 200 Meters from mean sea level MSL landwards which acts at the coastal area as construction control line the planed building of the Second Prosecuted Person is in our understanding in violation with the given laws as the plot of land is located in the no-construction zone. As another example to strengthen the legal purpose of why the “borderline of the construction restricted area” was extended can serve the Naklua Market, which also shows construction built into the sea.

Annex 10: See Satellite Picture of Naklua Market.

That this shown legal purpose is not without reason can be seen at the very neighborhood at Jomtien Complex Condotel when the court would kindly draw its attention to the “Jomtien Condotel” or “Grand Condotel” which fulfills the legal requirements of Ministerial Regulations Issue 9 and obey the 200 Meter no-construction zone.

Annex 11: See Satellite Picture shown the distances from MSL at Sea Shore Line.

The First prosecuted Person also claimed that on 20th November 2006, the specialist committee on environmental had passed the consent that the construction shall not impact the environment according to the study of the committee. The Office of the Natural resources and Environmental Policy and Planning has concurred to the construction. 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 made in accordance with the given regulation. For example, the 10 litigants and the co-owners as well as other neighboring communities had to be asked concerning their opinion as well as the approval of the planed project of the Second Prosecuted Person. This was a stipulated requirement by the Office of the Natural Resources and Environmental Policy and Planning in the letter dated 3rd March 2006.

Annex 12: See letter dated 3rd March 2006 form the Office of the Natural Resources and Environment Policy and Planning.

The hired consulting company S.P.S Consulting Co., Ltd. handed out questionnaires to the co-owners of Jomtien Complex Condotel. The co-owners filled out the questionnaire in a common sense with the result to express the most negative impact of the planed condominium.

Annex 13: See sample questionnaire handed out by S.P.S Consulting Co., Ltd. .

It is the opinion of the 10 litigants that this handling of handing out questionnaires to co-owners and probably other neighboring communities does not fulfill the given requirement. Finally this does not stipulate an approval of whatsoever kind. Up to this moment, there has no evidence to verify that 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 government units assigned to examine the standards and requirements according to the application submitted with the Office of the Natural Resources and Environmental Policy and Planning. This is a very crucial issue that all ten litigants would emphasize the Administrative Court to request the complete files from the Office of the Natural Resources and Environmental Policy and Planning to be part of the legal proceedings and focus and judge to revoke the Construction Permit granted to the Second Prosecuted Person accordingly.

The 10 litigants would like to draw the attention of the court to another important fact which does not fall under the jurisdiction of the Administrative Court. However, the 10 litigants feel the need to touch this civil law issue in response to the testimony of the First Prosecuted Person when it was said that the buyers of Jomtien Complex Condotel which is located on the roadside of Thappraya Road and not by the seaside would have expected some big condominium building to be built at a later date and block off the sea view, sea breeze, lightning, etc. . The buyers of Jomtien Complex made their decision to buy a condominium unit in Jomtien Complex based on the information given by them in the attached sales brochure.

Annex 14: See Sales Brochure of Jomtien Complex Condotel Co., Ltd. .

The 10 litigants want to clarify that the Jomtien Complex Condotel may be located on the roadside of Thappraya Road, however all units were sold having a panoramic sea view (see Sales Brochure of Jomtien Complex Condotel Co., Ltd.) This panoramic sea view would still be guaranteed if the original developer would fulfilled his promises and erecting a hotel as can be seen on the master-plan of the whole project. Finally, Mr. Ponsak, the Building Manager of Jomtien Complex Condotel Co., Ltd. said to the 10 Litigants after the sale of the land was public knowledge, that there is nothing to worry as the land was sold to a Hotel Developer and that it could only be developed as prescribed at the original Master Plan of the whole project.

Annex: 15: See extract from Sales Brochure showing the original development of the whole project.

As a result of the above mentioned reasons, the 10 litigants would kindly ask the court to modify the order for the to be named expert witness not to measure 100 Meters, but to measure 200 Meters from mean sea level MSL which equals the Construction Control Line onto the land as this is as shown the only logical and legal point to measure and show that the planed construction of the Second Prosecuted Person is in the no-construction zone according to Ministerial Regulation Issue 9. Therefore, the 10 litigants request the court to revoke the construction permit No. 162/2007

Yours respectfully,

Mr. Amnat Thiengtham