Maps Information to Understand what the Court Decision

English Translation of January 16, 2008 Court lifts the Injunction what allows construction to start! This is not the final order! Starting from page 4:

The Court ordered the Department of Civil Engineer and City Planning to measure the distance from the shoreline at MSL as prescribed by the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 controlling over the region of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhog Prue Amphur Bang Lamung of Chonburi Province B.E. 2521 to the building in dispute to obtain the distance and to submit the Court a map briefly prepared after measuring. The Department of Civil Engineer and City Planning followed the Court’s order and submitted its report which can be summarized that: Measurement must be started from the point of MSL having 0.00 meter. While measured from this point outward to sea at the distance of 100 meter, it shall be the construction control area as shown in the map annexed to aforesaid Royal Decree. And while measured from this point toward the land to reach the building by another 100 meter, it shall be the distance from construction control area of 200 meter referred in Article 3 under the Ministerial Regulation No. 8 (B.E. 2519) amended by the Ministerial Regulation No. 9 (B.E. 2521) which restricts the construction of building over 14 meter from road surface. Measurement showed that the building of the Second Prosecuted Person is over 200 meter construction control line. ( My Note: Regulation Issue 9 says: “No 3 to fix the 200 meters measured from the construction control line according to the annexed map to the Royal Decree …….at the sea shore in which the following constructions shall not be built: Building of 14 meters higher than road level. How could a witness rewrite Isse9? )

The Second Prosecuted Person filed a motion to the Court to revoke the provisional order or judgment before judgment.

The Court enquired both Parties and Witness.

The Litigant and 9 Associates filed a motion dated 15 January 2008 to clarify on matter of fact and matter of law which can be summarized that the ten Litigants accepted the MSL measurement process conducted by the Department of Civil Engineer and City Planning that the method should be correct in theory, but the Litigants are of opinion that the building control area prescribed in the map annexed to the Royal Decree is at the 100 meter distance from the original shoreline toward the sea and not from the MSL point. (Note this is not what we said!)

Mr. Veera Visuthirattanakul, 7^th Class Lawyer of the Department of Civil Engineer and City Planning, testified as the Witness, that the area controlling the construction as referred in The Royal Decree B.E. 2521 is 100 meter distance from MSL towards the sea. While measuring the Witness did not measure from the MSL point to the dispute building, but he measured from the MSL point until he reached 100 meter from the aforesaid point, and if measurement continued to reach the dispute building, the building would be about 102 or 103 meter far from MSL depending on which side to the building.

If the measurement was from the construction control area prescribed by the Royal Decree B.E. 2521, the building distance obtained would be similar to the measurement from the MSL inward the land at the distance of 200 meter.

The Court examined and considered the “Most Urgent” Report Ref. Mor Tor 0710/9634 dated 19 December 2007 submitted by the Department of Civil Engineer and City Planning requesting the Court to revoke the provisional order before judgment to the Second Prosecuted Person, and the procedures of the General Meeting of the Judges in the Supreme Administrative Court regarding Administrative Court Procedure B.E. 2543. The point to be considered is whether the Court should revoke the provisional order or judgment before judgment to the Second Prosecuted Person.

The consideration referred to Article 77 of the Administrative Court Procedure B.E. 2543 stated that the Court shall apply Title 1, Division 4 under the Civil Procedure Code to the consideration on motion filed against any provisional orders or measures before judgment as far as the Civil Procedure Code can apply mutatis mutandis, however, without contradiction to the Procedure. Reference was also made to Section 262 Paragraph 1 under the Civil Procedure Code saying that “Where in the course of trial there is any change or modification in the facts or circumstances on which the Court’s order granting an application for any provisional measures has been grounded, the Court before which the case is pending may, when it thinks fit or upon the application of the defendant or third person as provided in Section 261, issue an order altering or repealing such measure.”

This case the Court granted its order in response to the motion filed by the 10 Litigants on the materialized reason that the Court need time and consideration procedures to determine the correct starting point for measurement the distance as prescribed in the Ministerial Regulation No. 9 (B.E. 2521), and if the dispute building is properly far from the point of measurement as intended by law.

The measurement conducted by the Department of Civil Engineer and City Planning as ordered by the Court, and the testimony of the witness, it appeared that the dispute building is more than 100 meter away from the MSL. The Court is of the opinion that if the measurement was made from the building control area shown in the map annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 controlling over the region of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhog Prue Amphur Bang Lamung of Chonburi Province B.E. 2521 by another 100 meter further far away in the sea from the MSL as shown in the map annexed to the aforesaid Royal Decree and as testified by the witness, the dispute building would be over 200 meter from the control area as referred by the aforesaid Ministerial Regulation as well. Therefore, the facts that were used as reasons for granting the provisional order or measure before judgment in this case have now changed. There is not enough ground for which the Court shall maintain its provisional order before judgment further.

The Court, therefore, revokes its provisional order or measure before judgment to the Second Prosecuted Person to suspend the construction of its building over 14 meter above road surface with effective immediately.

Members of the Judge carrying the trial.

Mr. Kittinai Kromtach

Vice Director General – Administrative Court

Ms. Saisuda Sethabut

Director General – Administrative Court

Mr. Phongsak Kampusiri

Date : 16 January 2008

The Court expert witness rewrites the issue 9 regulation and the Administrative Supreme Court conclusion!

Judge of Supreme Administrative Court

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 ……..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

Attachment: Meets on the Drafting of Ministerial Regulation No. 8 (Issue8)

There have been several amendments made during the Meeting on proposals to the Ministerial Regulation No. 8 B.E. 2518 issued under the virtue of Building Control Act B.E. 2479 , i.e.

- Article 2, the first meeting prescribed “The road along the edge of the sea” means the road that one side connected to the sea does not exceed 50 meters from building construction restriction line.”

The meeting held later on further amended “setting of 100 meters from the construction control line referred to the map annexed.”

- Article 4, “Within the distance of 50 meters from the road along the edge of the sea, the following types of buildings are not permitted to be constructed.”

(8) Building of 14 meters above the road surface.

This was later amended to read “The area of 100 meters measured from the construction control line according to the map annexed, from the sea towards the shore shall not be permitted to construct the following types of buildings”

(8) Building of 14 meters above the road surface.

Further amendment was to delete the wording “towards the shore” since the wording was clearly understood, then the following wording was used instead “to fix the 100 meters measured from the construction control line according to the annexed map at the sea shore that building of the following types are not permitted for construction”

During the meeting, the Chairperson questioned the person who proposed this amendment that if the amendment shall take advantage on villagers who have only small piece of land on the sea shore for not being to optimize the use of land plots. The person who made this proposal answered that “minority must be sacrificed for the majority ”

The amendments were consented by the meeting because the meeting wanted to protect the beach by controlling the construction which may impact the natural look of sea beach area।


Summary of Building Control Regulation:

Ministerial Regulation Issue 8 (B.E. 2519) Chonburi Province (Pattaya)(the very first regulation)
Setting of 100 meters measured from construction restricted area in which the Building of 14 meters higher than road level shall not be built.

Ministerial Regulation Issue 9 (B.E. 2521) Chonburi Province (Pattaya)
 Setting of 200 meters measured from construction restricted area in which the Building of 14 meters higher than road level shall not be built.

Ministerial Regulation Issue 15 (B।E। 2529 ) Phu-ket Province Pha-thong beach )
Setting of 200 meters measured from border of construction restricted area onto the western land in which the Building of 12 meters higher than road level shall not be built

Ministerial Regulation Issue 19 (B.E. 2531 ) Song-Khra Province ( Kho-Yao)
Whole area in Kho-Yao (accepted area 1) in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation Issue 20 (B.E. 2532 ) Phu-ket Province ( Along the western coast line )
Area 1 Setting of 100 meters measured from the western coast line into the sea then setting of 50 meters measured from coast line onto the land in which the single one storey house of 6 meters higher than road level shall not be built.
Area 2 Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation Issue 22 (B.E. 2532) Suratthani Province ( Sa-mui )
Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation Issue 22 (B.E. 2532) Along coast line in Phang- nga Province
Setting of 225 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation Issue 30 (B.E. 2534 ) Phetchaburi Province ( Cha-um )
Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation Issue 31 (B.E. 2534 ) Chanthaburi Province
Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation Issue 36 (B.E. 2535 ) Prachuap khiri khun Province ( Hua-Hin )
Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation (B.E. 2543) Trang Province ( accepted Lee-pea island )
Area 1 Setting of 200 meters measured from coast line onto the land in which the building of 12 meters higher than road level shall not be built.
Area 2 Setting of 500 meters measured from coast line onto the land in which the building of 16 meters higher than road level shall not be built

Ministerial Regulation (B.E. 2546) Trad Province
 Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation (B.E. 2547) Khabi Province
Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built।

Ministerial Regulation (B.E. 2549 ) Ranong Province
Setting of 200 meters measured from coast line onto the land in which the Building of 12 meters higher than road level shall not be built.

Ministerial Regulation (B.E. 2549) Sa-toon Province ( accepted Lee-pea island )
Area 1 Setting of 200 meters measured from coast line in Sa-toon Province ( accepted Lee-pea island )onto the land in which the building of 12 meters higher than road level shall not be built।
Area 2 Setting of 500 meters measured from coast line in Sa-toon Province
( accepted Lee-pea island )onto the land in which the building of 16 meters higher than
road level shall not be built।

Thoughts on Administrative Court Order 16^th January 2008!

Expert witness:

The expert witness testified you measure 100 meters into the sea from MSL and 100 meters onto the land from MSL which equals 200 meters. The regulation in issue 9 said “to fix 200 meters measured from the construction control line” which is at MSL on the map. The expert witness divides the “fix 200 meter measurement” in half and applies on each side on MSL.

The expert witness never addresses the fact in Issue9. They miss represented the meaning of arrows on a map. How could this happen?

Arrows Facts:

· Arrows on the map are used only to point and give you information.

· One arrow pointed to the construction control line and said (at the sea shore mean sea level MSL). That is why, Bangkok City Planning in their June letter to the court said in Issue 9 it specifies you measure from MSL.

· One arrow points to the boundary line and said “100 meters”. This arrow pointing on the map is the reason the court expert witness testified you measure 100 meters into the sea and 100 meters onto the land which equals 200 meters.

· Arrows are not used to divide ask any draftsman or someone who have taken a high school class in mechanical drawing.

Issue 9 regulation and the maps.

1) The map show where the boundaries of the law are applied.

2) Where from you make the measure. (Answer is MSL which is the construction control Line)

3) The law tells you to make a measure of 200 meters.

What are the facts in Ministerial Regulation Issue 9 (B. E. 2521)
A) to fix the 200 meters measured
B) from the construction control line
C) at the sea shore
D) following constructions shall not be built (Building of 14 meters higher than road level)
Keeping it simple!

The legal sup-committee thanks all co-owner which support action to stop VT7. We think the above facts are clear!