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Appeal
Number of Black Case: 54 / 2550 Number of Red Case: 49 / 2552

Supreme Administrative Court

30 April 2009

Mr. T, 1st Plaintiffs
Between
Officers of Pattaya City Hall 1st
View Thalay Jomtien Condominium (1999) Co., Ltd. 2nd Plaint Receivers

I, hereby Mr. Surachai Trong-Ngam, Mr. Teerapan Pantkiri and Miss Pajama Plagaid, would like to lodge an Appeal to object The Decision given by The Administrative Court of First Instance, Dated: March 31, 2009 which had been read on March 31, 2009 as consisting of the following details ( clarifying the Objective of Decision or Order of The Administrative Court of First Instance );
1. In this case, The 10 Plaintiffs entered an Action and added on their Plaint stated that, the 10 Litigants hold possessions of condominium units and live in Jomthien Complex Condotel, Located at Thappraya Road, Moo 12, Nongprue Sub-district, Banglamung District, Chonburi Province. The 10 Plaintiffs were damaged by the procedure of 1st Plaint Receiver by issuing the construction license to construct the building with the License No.: 162 / 2550, issued on: 28 November 2549, permitted View Thalay Jomtien Condominium (1999) Co., Ltd. to permanently construct 1 tall building /or An extraordinary large building, type of building: Koh. Soh. Loh., consisting of 27 floors with the roof terrace, 912 units with 24 shops, for living purpose with the total space: 101, 469 Square Meters, parking space: 11, 708 Square Meters – capacities of cars: 418 cars, swimming pool area: 1,134 Square Meters, Length of

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pipes: 1, 261 Meters, Located on the land Title Deed No: 104606, and No: 123238 and No: 1149 is the Servitude of land No: 104606, and No: 123238, Nongprue Sub-district, Banglamung District, Chonburi Province. The building’s territory connects to Jomtien Beach separated by a garden and Jomtien beach pathway As for Jomthien Complex Condotel, it is located on the west side of, and next to the building which received the Construction Permit which was issued by 1st Plaint Receiver. For 1st Plaint Receiver to issue a Construction License to any buildings to be in accordance with the Construction Control Act BE. 2522 however, apart from considering its structural strength and safety, the Master plan, Area plan and Attachments with the Plans which had been submitted with the application for Construction must be up for consideration also, but it appeared that 1st Plaint Receiver had issued the Construction License without following Standards, Procedures and Conditions stipulated in Clause 3 of the Ministry Regulations Issue 8 (2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which had been amended and added by Clause 2 of the Ministry Regulations-Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which fixes the area within 200 meters, by measuring from the Construction Control Boundary, as shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, Along the Sea Sides to be Prohibited Areas for Buildings with the height over 14 meters and the permission was also in violation with Clause 4 of the Ministry Regulations Issue 33 (2535) promulgated to be in accordance with the Building Control Acts B.E. 2522 which had been amended and added by Clause 7 of the Ministry Regulations Issue 50 (2540) promulgated to be in accordance with the Building Control Acts B.E. 2522 which fixes the outer edge of Tall Buildings OR Extraordinary Large Buildings, whether the height above or under the ground, it must be away from the other person’s land / or public road no less than 6 (six) meters, however, it dose not include Foundation of building. The aforementioned building which was granted the Construction License has the constructed building on the Land Title Deed No: 104606 and 123238 which are the lands of View Thalay Jomtien Condominium (1999) Co., Ltd. and it has the South Wing is the outside edge of

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building, located just only 1 (one ) meter away from the Land alignment of Land Title Deed No: 1149 which owned by Mr. Kriangchai Panichpakdee, therefore it was contrary to the law for issuing that Construction License. Apart from this, if the building is continue constructing until it is completed, it will certainly block and change wind directions which always blow through Jomthien Complex Condotel, and also it will block Sea view sceneries of Jomtien Beach which will impact physical and mental conditions of 10 Litigants and also the other residents who live in Jomthien Complex Condotel ( missing part). Because the building which granted the Construction License by 1st Plaint Receiver consists of 27 floors or is 81 meters tall, which is nearly as tall as the Condominium that the 10 Plaintiffs live in. After 1st Plaint Receiver permitted View Thalay Jomtien Condominium (1999) Co., Ltd. to construct its building, in this present time, the company has started on Landscaping and Pilling which have caused Crack Lines and Parts falling off from the building of Jomthien Complex Condotel, and it also has never had Dust Spreading Prevention from the Construction. They have caused Air pollution and impacted respiratory systems of the 10 Plaintiffs. The 10 Litigants and other Residents of Jomthien Complex Condotel had officially tried to ask for Justice and made an Objection the permission of construction to 1st Plaint Receiver, and also made complaints to involved government sections all along, but the suffering has never been minimized, so the 10 Plaintiffs then had to institute the prosecution to the court of law.

May the Court kindly give a Judicial Decision to revoke the Construction
license/ Modify License or / Demolish License No: 162 / 2550, Issued on: 28 November 2549 and give an Order to suspend the construction until the Judicial Decision is given because the 10 Plaintiffs would be severely damaged until it can not be solved in the future, if the building is still being allowed to continue with its construction. This Case has the Point to consider that The Order of 1st Plaint Receiver which issuing the Construction License for 2nd Plaint Receiver to construct its building as permitted by the Construction License No: 162 / 2550, Dated on: 28 November 2549 was the Legal or Illegal Order.

The Rayong Administrative Court made consideration and saw that by Article 21 of the Construction Control Act B.E. 2522, it stipulated that, whoever wishes to construct /

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Modify or move any building, such person must receive a permit from local officials or inform local officials and then proceed following Article 39 Biz and Clause 3 of the Ministry Regulations Issue 8 (2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which had been amended and added by Clause 2 of the Ministry Regulations-Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which fixes the area within 200 meters, by measuring from the Construction Control Boundary, as shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, Along the Sea Sides to be Prohibited Areas for the following Types of building…. (8) Buildings with the height over 14 meters and Clause 4 of the Ministerial Regulations Issue 33 (B.E. 2535) promulgated to be in accordance with the Construction Control Act B.E. 2522 which had been amended by Clause 7 of the Ministerial Regulations Issue 50 (B.E. 2540) promulgated to be in accordance with the Construction Control Act B.E. 2522 which fixes the outter edge of Tall buildings or Extra Large Buildings, whether above or lower than ground levels must locate at least 6.00 meters from the other person’s land or public roads thereby not includes the foundation of building.

When the facts shown that on 27 December B.E. 2548, 2nd Plaint Receiver
applied for a construction license to construct a Permanent Building Type: Koh. Soh. Loh., consisting of 27 floors with the roof terrace, 912 units with 24 shops, Numbers of Building:

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One, for living purpose which was View Thalay Jomtien Beach Condominium (Project 7)
which was the extraordinary large building and it was close to Jomtien beach, Nongprue Sub-district, Banglamung District, Chonburi Province. The permission to construct the aforementioned building, 1st Plaint Receiver must have followed the Construction Control Act B.E. 2522 including that the construction must have followed the Ministerial Regulations Issue 8 (2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which was amended by the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 and the Ministerial Regulations Issue 33 (2535) promulgated to be in accordance with the Construction Control Acts B.E. 2522 which was amended by the Ministerial Regulations Issue 50 (2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522. So the construction of Disputed Building could not be built within the distance of 200 meters measuring from the Construction Control Boundary, as shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521 and the Boundary of Disputed Building must be away from the other person’s land or public road for no less than 6 (six ) meters. The fact was found later that 1st Plaint Receiver issued the construction license No.: 162 / 2550, Issued date: 28 November 2549 which was not in agreement with the 10 Plaintiffs by seeing that it was the permission of building taller than 14 meters within the distance of 200 meters by measuring from the Construction Control Boundary, as shown on the aforementioned Annexed Map of the Royal Decree, Along the Sea side and the building’s part on the South side which is the outer edge of building, located away from the Land Title Deed No: 1149 of Mr. Kriangchai Panichpakdee including if the building is still continue constructing until it is completed, it will certainly block and change wind directions which always blow through the building of 10 Plaintiffs and also it will block Sea views of Jomtien Beach which will impact physical and mental conditions of 10 Plaintiffs and also the other residents who live in Jomthien Complex Condotel. Apart from that, 4th Plaintiffs submitted

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a Statement dated 24 March 2009 on 1st Trial, stated that the two arrows pointing at each other as shown in on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521 only stated the distance of 100 meters from the arrow on the left to the arrow on the right which define meanings of what arrows pointing to. If there is another meaning that the arrow needs to define then must see from the law or another explanation which attached on some part of the map. The statement stated by the Department of Civil Engineer and City Planning that the measurement must be started measuring for 100 meters outward into the sea however, there has been no information shown about this technique of measurement on the map and the statement of the aforementioned Regulations whatsoever therefore 1st Plaint Receiver must not have been able to issue a construction license to 2nd Plaint Receiver, so there has been a point to take up for consideration that, to fix the area within the distance of 200 meters measuring from the Construction Control Boundary, as shown on the aforementioned Annexed Map of the Royal Decree, Along the Sea side to be Prohibited Areas for Buildings taller than 14 meters as referred to the aforementioned Regulations. By the aforementioned Regulations, whether how it stated its Standard and Measurement Method and the outer edge of the Disputed building has / or does not have its Boundary away from the other person’s land or public road for no less than 6 (six ) meters however, it was found after considering the aforementioned Regulations, Witness’ and the Disputed party’s Testimony from court’s Enquiry together with the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521 that as referred by the aforementioned Annexed Map of the Royal Decree, it fixes the symbol of CCL (Construction Control Line) away from the Coast Line at MSL for 100 meters which by the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479, it fixes to measure from the CCL, therefore the measurement to find the distance from the CCL must start from the Coast Line at MSL first to find the CCL by measuring from the Coast Line at MSL Outward into the sea for 100 meters to be the CCL as shown on the Annexed Map of the Royal Decree as

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mentioned. Then measuring from the CCL Inward onto the land for 200 meters, it will be the area within 200 meters measuring from the CCL which is the Prohibited Area for Buildings taller than 14 meters as stated in Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519) promulgated to be in accordance with Clause 3 of the Construction Control Acts B.E. 2479 which was amended by Clause 2 of the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which is the measurement from the Coast Line at MSL Inward onto the land for 100 meters which the Department of Civil Engineer and City Planning proceeded the measurement to fine the distance from Coast Line at MSL up to the Disputed building as ordered by the court since 15th until 17th November 2550, by the procedure was witnessed by both Parties and the Officials from the Department of Thai Meteorological and the Department of Civil Engineer and City Planning started measuring from the Bench Mark ( B.M.) at Or.Dtor. MSL Chor.Bor. 0029 which valued 48.988 meters from the MSL in the area of the Department of Thai Meteorological ( Pattaya ) on Thappraya Mountain by using a specific camera with the transference method to transfer levels down along the road until reaching Jomtien Beach and then carry on by footpaths until reaching the location of construction project of 2nd Plaint Receiver for the distance about 3.50 kilometers and using the camera to see from the front of aforementioned project to go back along the same way until reaching B.M. On Thappraya Mountain to inspect for correction. Each spot which passed the measurement would be marked by the Temporary B.M.( T.B.M.) for the whole distance. And the area of Jomtien Beach in front of the Constructed project of 2nd Plaint Receiver however, there were 2 T.B. Marks done which were MSL at 0.00 meter and at 1.4477 meters and measured the distance from both marks until reaching the front of Disputed building together with marking the Evidence Marks there. The result of measurement as shown on the Chart submitted to court showed the distance of 100 meters from Coast Line at MSL on the North side which passed Public areas for 50.15 meters and deep onto the land of 2nd Plaint Receiver for 49.85 meters. As for the distance on South side passed Public areas was 49.60 meters and deep onto the land of 2nd Plaint Receiver for 50.40 meters which the Disputed building was

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located further than 100 meters from the Coast Line at MSL. From the aforementioned Standard and Procedure of Department of Civil Engineer and City Planning however, it showed that the Department of Civil Engineer and City Planning proceeded its measurement method correctly and when it showed that the Disputed building of 2nd Plaint Receiver located further than 100 meters from the Coast Line at MSL, therefore the Disputed building is certainly not located within the area of 200 meters measuring from the Annexed Map of the Royal Decree as mentioned, by Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519) promulgated to be in accordance with Clause 3 of the Construction Control Acts B.E. 2479 which was amended by Clause 2 of the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479. As for the claim of 1st – 5th and 8th – 10th Plaintiffs which claimed that the building part on South side which is the outer edge of building located less than 6 (six) meters from the boundary of Mr. Kriangchai Panichpakdee’s land however, the Court considers that Mr. Kriangchai Panichpakdee who is the owner of the Land Title deed No: 1149 has registered with the Land Officials on 30 November 2548 for the aforementioned land to become a Servitude land for Walkways, Driveways, and all types of Utilities for the Land Title deed No: 104606 and No:123238 and also gave a written letter to allow 2nd Plaint Receiver constructs its building on the aforementioned land on 26 December 2548. Therefore 2nd Plaint Receiver has received the right to the Servitude status of the land No: 1149 by Juristic Act which enforcing Mr. Kriangchai Panichpakdee and the outsiders or Transferees of the ownership of the Land No: 1149 to be unable to operate the aforementioned land in the way that is in contrary with the uses of Walkways, Driveways, and all types of Utilities for the Land Title deed No: 104606 and No:123238 by the Phrase 1 of Article 1299 and Article 1387 of the Civil and Commercial Code. Later on, when 2nd Plaint Receiver applied for a Construction License of the Disputed Building by attaching the deed No: 1149 with No. 104606 and No:123238 for application by using it to be the land for the Project road which is 6 meters wide
which shown in the Plan of Title deed connection and Project Plan that the Disputed Building is located on the land No: 104606 and No:123238 with the outer edge on the South Side that is

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only 1(one) meter away from the deed No: 1149. But when calculating together with the deed No: 1149 which is the Servitude land for Land Title deed No: 104606 and No:123238 and using it to be Project road which is 6 meters wide, which all together is 7 meters, then the Disputed Building however, has the outer edges of its building both above or under the ground away from the other person’s land or Public roads for no less than 6(six) meters. It is in agreement with Clause 4 of the Ministerial Regulations Issue 33 (2535) promulgated to be in accordance with the Construction Control Acts B.E. 2522 which was amended by Clause 7 of the Ministerial Regulations Issue 50 (2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522. Apart from that, the areas in Nongprue Sub-district, Banglamung District, Chonburi Province which is the land that the Disputed building is constructed, is the Red Zone Area for Commercials. The land is set to be mainly used for Commercial, Residential, Government Officials, Utility Purposes as referred to Clause 7 ( 3 ) together with Clause 10 of Ministerial Regulations enforcing the Pattaya Combination City Planning, Chonburi Province B.E. 2546. The aforementioned area is therefore able to be permitted to constructed the Disputed building for Residential purpose. The aforementioned claim of 10 Plaintiffs is not strong enough, therefore the Permission issued by 1st Plaint Receiver which permitted 2nd Plaint Receiver to build its Disputed building by the license No: 162 /2550, Dated: 28 November 2549 was a legal permission.

The case is dismissed.

2. The 8 Plaintiffs wish to appeal the Decision of the Rayong Administrative
Court of First Instance to the Supreme Administrative Court with Included Reasons, Facts and Law Points as follow;
As kind considered by the Rayong Administrative Court of First Instance
that, “ This Case has the Point to consider that The Order of 1st Plaint Receiver which issuing the Construction License for 2nd Plaint Receiver to construct its building as permitted by the Construction License No: 162 / 2550, Dated on: 28 November 2549 was the Legal or Illegal Order” however,

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For the point concerning construction of 2nd Plaint Receiver however, it
must follow the Ministry Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which fixes the area within 200 meters, by measuring from the Construction Control Boundary, as shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province B.E. 2521, Along the Sea side to be the Prohibited Areas for the following Types of Building…. (8) Buildings taller than 14 meters from road surfaces.
The 8 Plaintiffs would like to explain to the court that what Rayong Court considered on this point that “ there is a point to consider that, to fix the area within 200 meters, by measuring from the Construction Control Boundary, as shown on the aforementioned Annexed Map of the Royal Decree, Along the Sea side to be the Prohibited Areas for Buildings taller than 14 meters from road surfaces herein, which Standard and Method that had been used for the measurement….”
Which the Rayong Court kindly considered that “ ….. It’s seen that, as referred by the aforementioned Annexed Map of the Royal Decree, it fixes the symbol of CCL (Construction Control Line) away from Coast Line at MSL for 100 meters which by the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479, it fixes to measure from the CCL, therefore the measurement to find the distance from the CCL must start from the Coast Line at MSL first to find the CCL by measuring from the Coast Line at MSL Outward into the sea for 100 meters to be the CCL as shown on the Annexed Map of the Royal Decree as mentioned. Then measuring from the CCL Inward onto the land for 200 meters, it will be the area within 200 meters measuring from the CCL……”

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Which the Rayong Court considered from listening to the Report of Measuring the distance from Coast Line at MSL (Mean Sea Level) of the Department of Civil Engineer and City Planning (DCECP) and then gave consideration that “……it’s seen that the Department of Civil Engineer and City Planning proceeded its measurement method correctly and when it showed that the Disputed building of 2nd Plaint Receiver located further than 100 meters from the Coast Line at MSL, therefore the Disputed building is certainly not located within the area of 200 meters measuring from the Annexed Map of the Royal Decree as mentioned, by Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519) promulgated to be in accordance with Clause 3 of the Construction Control Acts B.E. 2479 which was amended by Clause 2 of the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479.
….Therefore the Permission which 1st Plaint Receiver permitted 2nd Plaint
Receiver to build the Disputed building by the license No: 162/ 2550, Dated: 28 November 2549 was a legal permission.”

With respect to the Decision given by the Rayong Adminstrative Court but however, the 8 Plaintiffs can not be in agreement with the aforementioned Decision because the Facts Hearing, the Interpretation to enforce the law in order to take control all involved constructions under control of the Rayong Adminstrative Court as mentioned still have errors and mistakes in the points concerning Facts and Law points which are in opposite to the Intention or Purpose of law which has been preserved and protected, which effect benefits of the 8 Plaintiffs and Public for protecting environment as will clarify to the Supreme Administrative Court in this Appeal.
2.1 To interpret and enforce the Ministerial Regulation Issue 9 ( B.E. 2521 ) in order to control all constructions however, the intention and objective of the involved laws must be taken up for consideration. And in the regions of Nongprue Sub-district of ……..
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Banglamung District, Chonburi Province which is the location of Disputed building of this case thereby, the first law which was stipulated to fix the Construction Control Area was…
The Ministerial Regulations Issue 8 (B.E. 2519) promulgated to be in
accordance with the Construction Control Acts B.E. 2479 which gave a reason or in other meaning, the intention for promulgating the aforementioned law was “According to the Royal Decree which promulgated to enforce the Construction Control Act BE. 2479 over the regions of Banglamung, Nongprue and Na klua Sub-districts, Chonburi Province BE. 2499 and the aforementioned areas are tourist attractions, some types of construction which may cause interference or disturbance and waste products and ruin the environment should be prohibited to be constructed, therefore this Ministerial Regulations is needed to be promulgated”.
The 8 Plaintiffs submitted a letter to ask for kind assistance from the Office of Royal Decree in order to make a copy of the Minute of Drafting the Ministerial Regulations of Issue 8 ( B.E. 2519 ) and 9 ( B.E. 2521 ) but the Office of Royal Decree informed the 8 Plaintiffs that this document was the secret document which was not allowed to be exposed freely to public but The 8 Plaintiffs were allowed to search from Data in its computer, therefore The 8 Plaintiffs made a copy and would like to submit a part of the essence which concerning the Intention of issuing the Ministerial Regulations of Issue 8 ( B.E. 2519 ) and 9 (B.E. 2521) which will be stated as follow;
The Ministry of the Interior had submitted the Draft of Ministerial Regulations by giving its reason of submission as a Note of Principles and Reasons with the Draft….. which later, it was promulgated to be the Ministerial Regulations Issue 8 (B.E. 2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which stated that “ Acccording to the Royal Decree which has been promulgated to enforce the Construction Control Act BE. 2479 over the regions of Banglamung, Nongprue and Na klua Sub-districts, Chonburi Province BE. 2499 for quite a long time herein, recently it appears that

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the aforementioned areas are tourist attractions and there have been a lot of constructions such as Resorts, hotels and Flats, some types of construction which may cause interference or disturbance and waste products and ruin the environment should be prohibited to be constructed”.

During drafting the aforementioned Ministerial Regulations however, many opinions have brought up to be discussed especially the Intention or Purpose of issuing those Regulations which was a clear intention that it needs to take control constructions built on land. It is seen in some statements of this Draft the Ministerial Regulations such as Draft 1, it stated its intention of fixing the Area of Construction Control that,
“ ……. 2 of the Regulations,
“ Beach road” means a road which lays along the Shore with of its Borderline on the seaside located no more than 50 meters from the Construction Control Line on the seaside.
……… 4. The area within 50 meters from the Construction Control Line on the seaside and within 50 meters from the Borderline of the Beach road to be the Prohibited areas for the following construction types ….”

In the Meeting to Draft the aforementioned Ministerial Regulations of February
17, 2519 therein, a representative from the Department of Civil Engineer and City Planning had explained the reason of issuing this Regulations that “ To support the Construction Control Areas which are tourist attractions and they can create great incomes for the country to be the areas under control so they will stay beautiful for tourism, therefore some types of factories are forbidden” and also explained that “ the reason of fixing the Beach road is for being clear that the control areas cover only areas along the beach and also cover the new roads too….” And “ ….. our intentions are,
1. To take control constructions in the areas of 50 meters up from the shore, whether if they reach or do not reach the Borderline of the road.
2. To take control from the shore up to the Road area lines. If they are less than 50 meters, then the other side of Road area lines must be under control outward for another 50 meters.

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3. To prohibit over all areas stipulated in the Royal Decree enforcing the Construction Control Act BE. 2479 over the regions of Banglamung, Nongprue and Na klua Sub-districts, Chonburi Province BE. 2499 apart from those who have been there before….”

The Meeting for Drafting the aforementioned Ministerial Regulations of February 26, 2519 therein, the Amended Draft was submitted with a statement stated that “ 4. Stipulated to fix the area within 100 meters measuring from the Construction Control Line as shown in the Annexed Map as shown in Clause 1, along the Sea side inward onto the land, to be prohibited areas for construction types such as (1) – (8)….” But then there was a suggestion to cut the phrase inward onto the land out and it was agreed by the Assembly therefore the Ministerial Regulations of Issue 8 ( B.E. 2519 ) has finally been promulgated.

From the Note of Principles and Reasons with the Draft of Ministerial Regulations Issue 8 ( B.E. 2519) and the Minute of Drafting the aforementioned Ministerial Regulations, it appeared that the Principles and Reasons or in other meaning, the intention for promulgating the aforementioned law was because there have been a lot of constructions such as Resorts, hotels and Flats, some types of construction which may cause interference or disturbance and waste products and ruin the environment should be prohibited to be constructed”. Therefore the Intention of issuing this law was to prohibit the construction types which meant to be built on land along the sea sides only, nothing had been mentioned about construction in the sea whatsoever and it can be seen clearly in 1st Draft of Regulations which the reason was gaven by the representative from DCECP stated that “ the reason of fixing the Beach road is for being clear that the control areas cover only areas along the beach and also cover the new roads too…” so it is clearly shown that the Intention of Ministerial Regulations Issue 8 ( B.E. 2519) is to take control constructions on land only.

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From the Intention of Ministerial Regulations Issue 8 ( B.E. 2519) promulgated to be in accordance with the Construction Control Act B.E. 2479 as mentioned can be seen that it was the stipulation with the Prior intention to take control constructions within the areas listed by the Regulations and it also stipulated conditions for construction as follow;
…… 2. To fix the area as stated in this Regulations to be the prohibited areas for the following types of construction
(1)… - (14) ….
Clause 3, fixes the area within 100 meters measuring from the Construct
Control Line as shown in the Annexed Map of the Royal Decree promulgated to enforce the Control Acts BE. 2479, over the regions of Banglamung, Naklua and Nongprue Sub-districts of Banglamung District, Chonburi Province BE 2499, along the sea sides to be the prohibited areas for the following types of constructions.
(1) Gasoline or Petrol warehouse and distributor
(2) Entertainment Hall
(3) Row houses
(4) Commercial Buildings
(5) Fresh Market
(6) Car or Motorcycle fixing or color spraying Garage
(7) Warehouse
(8) Building taller than 14 meters

Clause 4, Within the area listed in Clause 3
(1)…(2)
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Details as shown in the Attachment No. 1: the Ministerial Regulations Issue
8 (BE. 2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479.
From the stipulation of the Ministerial Regulations Issue 8 ( B.E. 2519 ) as
above shows that, all prohibited constructions and some types of construction with limited areas of construction in the areas listed by this Regulations are the types of construction that may cause interference / damage and waste products and also destroy environment.

From the stipulations of Ministerial Regulations Issue 8 ( B.E. 2519) as mentioned above, it is seen that the controlled constructions which prohibited from being built and some types of construction with certain conditions required for building within the areas listed by this Regulations all are the types that will cause interference or disturbance and waste products and ruin the environment. The intention for issuing this Ministerial Regulations is to take control constructions on land not in the sea and also it was the stipulation to preserve environment of cities by the beaches which can see from the Prior Essence of the Stipulation which are the fixing of distance between the sea and constructions and the fixing of Construction Types which are prohibited to be constructed. All to preserve the environment and surroundings of tourist attractions by the sea of Thailand to be in fine condition and good environmental condition for future.
Then later the Royal Decree promulgated to enforce the Control Acts BE. 2479, over the regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-districts of Banglamung District, Chonburi Province BE 2521 was promulgated with the reason of “According to the rapid growth of constructions in the regions of Banglamung, Nongplalai, Nongprue and Na klua Sub-districts, Chonburi Province and it appears that some constructions did not follow the stipulation of the law governing Construction Control, because the matter that the Construction Control Line as shown in the Annexed Map of the Royal Decree promulgated to enforce the Construction Control Acts BE. 2479 over the regions of Banglamung, Nongprue and Na klua Sub-districts, Chonburi Province BE 2499 does not cover the aforementioned construction areas, therefore it is

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appropriate to revise the aforementioned Royal Decree by expanding the area, especially the areas along the sea sides, to allow local officials to enforce the law in those areas, therefore, this Ministerial Regulations needed to be promulgated”.

To be in agreement with the promulgation of the aforementioned Royal Decree, therefore the Ministerial Regulations Issue 9 ( B.E. 2521) promulgated to be in accordance with the Control Acts BE. 2479 then has been promulgated with the reason of “According to the adjustment of the Construction Control Area over the regions of Banglamung, Naklua and Nongprue Sub-district by expanding it as shown in the Annexed Map of the Royal Decree promulgated to enforce the Construction Control Acts BE. 2479 over the regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province BE. 2521. It’s appropriate to revise the Ministerial Regulations Issue 8 (BE. 2519) promulgated to be in accordance with the Construction Control Acts BE. 2479 governing the prohibition for construction certain types of buildings in the Construction Control Line as stipulated in the aforementioned Royal Decree, therefore to be more appropriate and suitable, this Ministerial Regulations is needed to be promulgated”.

Details as shown in the Attachment No. 2 and 3 respectively: the Royal decree and the Ministerial Regulations Issue 9 (B.E. 2521)

The intentions or purposes of promulgation the Royal Decree B.E. 2521 and
Ministerial Regulations Issue 9 ( B.E. 2521) are as follow;
1. There was an adjustment of the Construction Control Areas in the regions
of Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province by adding one more control area to be enforced by the Royal Decree B.E. 2521 and the Ministerial Regulations Issue 9 (B.E. 2521) which is Nongplalai Sub- district which is the adding from the Ministerial Regulations Issue 8 (B.E. 25190 which shown that the adding of one more area

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within the Construction Control area therefore was not the intention or purpose to expand the Construction Control Area outward into the sea whatsoever.

2. Apart from adding one more area to enforce the Construction Control Area as mentioned in Clause 1, the Royal Decree B.E. 2521 and the Ministerial Regulations Issue 9 (B.E. 2521) also gave one more intention which was the Ministerial Regulations Issue 9 (B.E. 2521) had amended the stipulation of Clause 3 to be fixing the area within 200 meters measuring from the Construction Control Line as shown in the Annexed Map of Rayal decree B.E. 2521, along the Sea side be prohibited areas for construction types such as in Clause 3 (1) – (8). To interpret in order to be in agreement with the intention or purpose of the Ministerial Regulations Issue 8 (B.E. 2519) which stipulated to fix the area within 100 meters measuring from the Construction Control Line as shown in the Annexed Map of Rayal decree B.E. 2521, along the Sea side be prohibited areas for construction types such as (1) – (8) then it is shown that the Ministerial Regulations Issue 9 (B.E. 2521) is the expansion of the distance of Construction Control from prohibited constructions as stated in Clause 3. (1)-(8) from 100 meters to be 200 meters and if the consideration is made by analyzing the stipulation of Clause 3 of both Regulations then it can be seen that the area for enforcing was listed clearly which was “ ….. along the seaside…” . Therefore the interpretation herein must be interpreted that it was the Expansion of the distance along the seaside inward on to the land in order to protect from construction of all prohibited buildings as stated in the Ministerial Regulations Issue 8 (B.E. 2519) and Ministerial Regulations Issue 9 (B.E. 2521) however can be more appropriate and in accord.

2.2 Together with considering of the Types of construction under control as stated in Clause 3 (1) – (8) of the Regulations Issue 8 ( B.E. 2519 ) and Issue 9 (B.E. 2521) as mentioned, it will show that they are all types of construction which their conditions and operation purposes have to be built on land and can not be built in the sea whatsoever, especially considering of the intention of issuing the law thereby, it shows that this was the issuing of law to preserve environment of cities by the beaches which can see from the Prior Essence of the Stipulation which are the fixing of distance between the sea and constructions

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and the fixing of Construction Types which are prohibited to be constructed. Therefore the interpretation of the Phrase “ Expand to be wider than before” as shown in the Note of the Ministerial Regulations Issue 9 (B.E. 2521 ) to be the expansion of the Construction Control Area outward into the sea because it will certainly make the Expansion of the Construction Control Area become unenforceable in reality as intended by both aforementioned Regulations. So the interpretation of Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521 ) which fixes the area within 200 meters, must be interpreted to be the expansion of Construction Control Area as stated in Clause 3 (1) – (8) from the seaside inward onto the land to be wider than before from 100 meters to be 200 meters.

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beaches which can see from the Prior Essence of the Stipulation which are the fixing of distance between the sea and constructions and the fixing of Construction Types which are prohibited to be constructed. Therefore the interpretation of the Phrase “ Expand to be wider than before” as shown in the Note of the Ministerial Regulations Issue 9 (B.E. 2521 ) to be the expansion of the Construction Control Area outward into the sea because it will certainly make the Expansion of the Construction Control Area become unenforceable in reality as intended by both aforementioned Regulations. So the interpretation of Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521 ) which fixes the area within 200 meters, must be interpreted to be the expansion of Construction Control Area as stated in Clause 3 (1) – (8) from the seaside inward onto the land to be wider than before from 100 meters to be 200 meters.

2.3 Apart from that, the Decision from Rayong Administrative Court which decided that the Measurement to find the Construction Control Area must start at the Coastline at MSL ( Mean Sea Level ) first to find the Construction Control line by measuring outward into the sea for 100 meters from the Coastline at MSL, it will be the Construction Control Line as shown in the Annexed Map of the aforementioned Royal Decree, and when measuring from the Construction Control Line inward onto the land for 200 meters, then it will be the distance of 200 meters measuring from the Construction Control Line…..”

With high respect to the Decision of Rayong Administrative Court however, the 8 Plaintiffs can not be in agreement with the aforementioned Decision because the interpretation of the Construction Control Line to be in accordance with the Ministerial Regulations Issue 9 (B.E. 2521 ) by the Rayong Administrative Court as mentioned was the interpretation which expands the Construction Control Area into the sea which is not following the Intention of Royal Decree B.E. 2521 and the Ministerial Regulations Issue 9 (B.E. 2521 ) as explained to the Supreme Administrative Court in Clause 2.1 and 2.2 as above. Also if the interpretation is made in the way the Rayong Administrative Court did as mentioned then it will allow more constructions with the height more than 14 meters from road surfaces to be built closer to the sea which will be in contrary with the Intention of law as will clarify to the court as follow;

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The Starting point of Measurement of the Construction Control Line to be in accordance with the Ministerial Regulations Issue 8 (B.E. 2519 ) promulgated to be in accordance with the Construction Control Acts BE. 2479, Clause 3 which stipulated “ to fix the area within 100 meters measuring from the Construction Control Line as shown in the Annexed Map of Royal Decree enforcing the Construction Control Act B.E. 2479 over the regions of Banglamung, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province BE. 2499, along the sea sides to be the prohibited areas for the following types of constructions…. (8) Buildings with the height taller than 14 meters from road surfaces”.
The Starting point of Measurement of the Construction Control Line to be in accordance with the Ministerial Regulations Issue 9 (B.E. 2521 ) promulgated to be in accordance with the Construction Control Acts BE. 2479, Clause 2 which cancelled the statement in Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) and started using the following statement which stated that “ 3. To fix the area within 200 meters measuring from the Construction Control Line as shown in the Annexed Map of Royal Decree enforcing the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province BE. 2521, along the sea sides to be the prohibited areas for the following types of constructions…. (8) Buildings with the height taller than 14 meters from road surfaces”.

The 8 Plaintiffs would like to explain to the Supreme Administrative Court that the starting point of Measurement to find the Construction Control Line to be in accordance with both Ministerial Regulations as mentioned are not the same point. Mr. Surapol Pongthaipat, Chief Engineer, On Duty for Director- General of the Department of Civil Engineer and City Planning had explained in a letter submitted to Rayong Administrative Court stated that “ 2. the distance of 100 meters of Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) promulgated to be in accordance with the Construction Control Acts BE. 2479 and the distance of 200 meters of Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Acts BE. 2479 are not the same line because the Coast line by the Ministerial Regulations Issue 8 (B.E. 2519)

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does not fix to measure at the MSL but by the Ministerial Regulations Issue 9 (B.E. 2521 ) however fixes to measure at the MSL only”

Details as shown in the Attach document No: 4 – the letter from the Department of Civil Engineer and City Planning, Most Urgent No: Mor. Tor. 0710 / 4245, Date: 19 June 2550, Subject: Order for an explanation which was submitted to court by the Department of Civil Engineer and City Planning.
Therefore, the explanation from the Department of Civil Engineer and City Planning as above shows that the measurement by the Ministerial Regulations Issue 8 (B.E. 2519 ) is the measurement from the Coastline which means High Tide but the Ministerial Regulations Issue 9 (B.E. 2521 ) is fixed at MSL which means the Starting point of Measurement of both Ministerial Regulations are not the same point.

The Starting point of Measurement to be in accordance with the Ministerial Regulations Issue 8 (B.E. 2519 ) as reported by the Department of Civil Engineer and City Planning as above starts at the Coastline which 1st Plaint Receiver used to inspect the construction site of Dispute building of 2nd Plaint Receiver and it showed that the Coastline ( High Tide ) located 39 meters from the land of 2nd Plaint Receiver.

Details as shown in the Attached document No. 5 which the 8 Plaintiffs would like to claim to be the attachment of this Appeal : the letter from the Mayer of Pattaya City Hall to the Secretary of Natural Resources and Environment Planning Department, Issued date: 5 April 2550 which 1st Plaint Receiver claimed to be the Attachment of its testimony item: 13, Dated: 19 July 2550.

But if the Measurement of Construction Control Line by the Ministerial Regulations Issue 9 (B.E. 2521 ) is started as stated in the Decision from Rayong Administrative Court as mentioned which stated that “….the Measurement to find the Construction Control Area must start at the Coastline at MSL ( Mean Sea Level ) first to find the Construction Control line by measuring outward into the sea for 100 meters from the Coastline at MSL, it will be the Construction Control Line as shown in the Annexed Map of the aforementioned Royal Decree, and when measuring from the Construction Control Line inward onto the

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land for 200 meters, then it will be the distance of 200 meters measuring from the Construction Control Line…..” which is the same distance of which the Department of Civil Engineer and City Planning made
the measurement to follow the Order of Rayong Administrative Court. The Department of Civil Engineer and City Planning made a Report of aforementioned Measurement then submitted to Rayong Administrative Court with the summery of its procedure which stated that,
( 1 ) The measurement from the Coast line at the MSL ( + 0.00 ) on the NORTH point of the Disputed land to the Bench Mark is 50.15 meter. Then measuring inward onto the Disputed land for another 49.85 meters is 100 meters which measured from the coast line at MSL ( + 0.00 ) ON THIS SIDE
( 2 ) The measurement from the Coast line at the MSL ( + 0.00 ) on the SOUTH point of the Disputed land to the Bench Mark is 49.60 meter. Then measuring outward into the Disputed land for another 50.40 meters is 100 meters which measured from the coast line at the MSL ( + 0.00 ) ON THIS SIDE

Details as shown in the petition of the 2nd Plaint Receiver, Dated: 2 January 2008

Clause 3 of the Ministerial Regulations Issue 8 ( B.E. 2519 ) stipulated “ to fix the area
within 100 meters measuring from the Construction Control Line as shown in the Annexed Map of Royal Decree B.E. 2499, along the Sea side inward onto the land, to be prohibited areas for the following construction types ……(8) Buildings taller than 14 meters from road surfaces”. When the Department of Civil Engineer and City Planning explained to Rayong Administrative Court that the starting point of Measurement by the Ministerial Regulations Issue 8 ( B.E. 2519 ) is at the Coastline which means at High Tide inward onto the land for 100 meters which the details shows in the Attachment No. 5: Letter dated April 5, 2550. It appears that 1st Plaint Receiver used to measure the distance from Coastline ( High Tide ) to the Bench Mark ( B.M.) of land of 2nd Plaint Receiver for 39 meters. Therefore the Construction Control Area by the Ministerial Regulations Issue 8 ( B.E. 2519 ) must be deeper inside the land of 2nd Plaint Receiver for 61 meters .

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Clause 3 of the Ministerial Regulations Issue 9 ( B.E. 2521 ) stipulated “ to fix the area
within 200 Meters measuring from the Construction Control Line as shown in the Annexed Map of Royal Decree B.E. 2521, along the Sea side, to be prohibited areas for the following construction types ……(8) Buildings taller than 14 meters from road surfaces”. If the measurement of Construction Control Area is made following the Rayong Administrative Court and the Report of Department of Civil Engineer and City Planning as mentioned above however, It will show that the Construction Control Area by the Ministerial Regulations Issue 9 ( B.E. 2521 ) on the North side of Disputed land, must be deeper inside the land of 2nd Plaint Receiver for 49.85 meters. On the South side for 50.40 meters.

When the Construction Control Area by the Ministerial Regulations Issue 8 ( B.E.
2519 ) and Issue 9 (B.E. 2521) are compared to each other then it shows that 2nd Plaint Receiver can build its construction with the height over 14 meters from road surfaces closer to the sea by the North side is 10.85 meters and the South side is 11.40 meters.
Therefore the interpretation to enforce the Ministerial Regulations Issue 9 (B.E. 2521) of
the Rayong Administrative Court as mentioned above is the interpretation to enforce the law in the way that is in contrary with the intention and purpose of the Ministerial Regulations Issue 9 (B.E. 2521) and the Royal Decree B.E. 2521 which intend to expand the Construction Control Area to be wider than before.

2.4 However, even though the Department of Civil Engineer and City Planning is the
officials who enforce the Ministerial Regulations Issue 8 ( B.E. 2519 ) and Issue 9 (B.E. 2521) but it appeared by the way it interpreted both Regulations that the Department of Civil Engineer and City Planning failed to interpret to enforce both Regulations correctly by the intention of law plus it interpreted

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to enforce both Regulations uncertainly, means, in each time of interpreted to enforce the law therein, it did not give the same interpretation which should not happen by the section which responsible in enforcing the law. Details will be explained to Court as follow;
On June 19, 2550, the Department of Civil Engineer and City Planning by Mr. Surapol Pongthaipat, Chief Engineer, On Duty for Director- General of the Department of Civil Engineer and City Planning had issued the letter: Most Urgent

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plus it interpreted to enforce both Regulations uncertainly, means, in each time of interpreted to enforce the law therein, it did not give the same interpretation which should not happen by the section which responsible in enforcing the law. Details will be explained to Court as follow;
On June 19, 2550, the Department of Civil Engineer and City Planning by Mr. Surapol Pongthaipat, Chief Engineer, On Duty for Director- General of the Department of Civil Engineer and City Planning had issued the letter: Most Urgent No:: Mor. Tor. 0710 / 4245, To the Director-General of the Rayong Administrative Court, Referred to the Order required for an explanation by Rayong Administrative Court in the Black Case No: 54 / 2550, Dated May 4, 2550 which which Rayong Administrative Court ordered the Department of Civil Engineer and City Planning to send an Explanation Letter to the court consisted the following matters;
1. As shown in the Annexed Map of Royal Decree enforcing the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province BE. 2521, it fixes the Construction Control Line for the seaside at the distance of 100 meters from Coastline at MSL. Which exact point is the Coastline at MSL and is there any mark to be noticed? And also is there any mark to notice the distance of 100 meters from the aforementioned Coastline?
2. The distance of 100 meters by Clause 3 of the Ministerial Regulations Issue 8
(B.E. 2519 ) promulgated to be in accordance with the Construction Control Act B.E. 2479 and the distance of 200 meters by Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Act B.E. 2479 are the same or different distance and is there any mark to be noticed?

The Department of Civil Engineer and City Planning then discussed with the Construction Control Committee and then decided that,
1. The Coastline at MSL is the point where Coastline meets Mean Sea Level which the Mean Sea Level Value can be found from Bench Mark (B.M.) of Department of Thai Hydrographic, the Royal Thai Navy. The MSL is the fixed value but Coastline is shifted by seasons changed therefore the Coastline at MSL at Mark 1 or 2 as shown in the attached picture

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would be depended on the day and time of survey which the mark will not be able to see if Marks 1 and 2 were missed from putting any Bench marks to be noticed on the day the survey was made to find Coastline at MSL.
2. The distance of 100 meters by Clause 3 of the Ministerial Regulations Issue 8
(B.E. 2519 ) promulgated to be in accordance with the Construction Control Act B.E. 2479 and The distance of 200 meters by Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Act B.E. 2479 are not the same line because the Coastline by the Ministerial Regulations Issue 8 (B.E. 2519 ) does not fix at MSL but by the Ministerial Regulations Issue 9 (B.E. 2521) fixes at MSL only.
According to the explanation made by the Department of Civil Engineer and City
Planning in Clause 2, it shows that the Department of Civil Engineer and City Planning discussed with the Construction Control Committee and then decided that, the distance of 100 meters by Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) and the distance of 200 meters by Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Act B.E. 2479 are not the same distance by reasons as clarified above.

Details as shown in the Attachment No. 4: Letter of the Department of Civil Engineer and City Planning

Then later on, On April 30, 2551, the Department of Civil Engineer and City Planning by Mr. Surapol Pongthaipat, Chief Engineer, On Duty for Director- General of the Department of Civil Engineer and City Planning had issued the letter No: Mor. Tor. 0710 / 3362, To Juristic Person manager of Jomthien Complex Condotel, Subject: Request for an Order for the Department of Civil Engineer and City Planning, Ministry of the Interior to explain the correct way of fixing distance and the method to measure Construction Control Line which shown in statements with the essence summarized that,

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By the difference between both Ministerial Regulations which are the Ministerial Regulations Issue 8 (B.E. 2519 ) fixes the Control Line which is the Coastline but does not fix specific level of sea water to be measured but the Ministerial Regulations Issue 9 (B.E. 2521 ) fixes the Control Line which is the line measuring from Coastline at MSL outward into the sea for 100 meters by Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) and the distance of 200 meters by Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Act B.E. 2479 are not the same distance by reasons as clarified above and by Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) fixes the Construction Prohibited Area in the distance of 100 meters measuring from CCL as shown in the Annexed map of Royal decree B.E. 2499 which exactly is the distance of 100 meter from Coastline which Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521) fixes the Construction Prohibited Area in the distance of 200 meters measuring from CCL as shown in the Annexed map of Royal decree B.E. 2521. The aforementioned Construction Control Line therefore have to measure from Coastline at MSL which located outward into the sea for 100 meters which if the measurement is made from Coastline at MSL inward onto the land for 100 meters however, it will be the Construction Prohibited Line measuring from CCL as shown in the Annexed map of Royal decree B.E. 2521 which is the distance of 200 meters exactly. Therefore it should be in agreement with the former intention of regulations Issue 8 (B.E. 2519 ) which fixes the distance of 100 meters from Coastline, but the Ministerial Regulations Issue 9 (B.E. 2521) even fixes clearer to measure from the Coastline at MSL and even expands the Construction Control Area outward into the sea as well for another 100 meters from Coastline at MSL which originally, the Construction Control Area did not cover areas in the sea, therefore any constructions which applied for a license after December 31, 2521 must have followed Clause 3 which amended by the Ministerial Regulations Issue 9 (B.E. 2521) by the measurement must be made inward onto the land for 200 meters from CCL / or from Coastline at MSL inward onto the land for 100 meters. It will gain the same space of the Construction Prohibited Area on land as same as each other, both in Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) and Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521), thereby the starting point for measurement is at the Mean Sea Level”.

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Details as shown in the Attachment No. 6: the letter of the Department of Civil Engineer and City Planning No: Mor. Tor. 0710 / 3362, Dated: April 30, 2551, To Juristic Person manager of Jomthien Complex Condotel.
Which the opinions given by the Department of Civil Engineer and City Planning
shown in both letters as mentioned above show that the Department of Civil Engineer and City Planning did not analyze both aforementioned Ministerial Regulations in every detail carefully and it was the interpretation without knowledgeable standard whatsoever because by considering both of letters from the Department of Civil Engineer and City Planning which analyzed the interpretation of the Ministerial Regulations Issue 8 (B.E. 2519 ) and Issue 9 (B.E. 2521) in both letters, they then show some contrary statements to each other. The letter dated on June 19, 2550 to the Director-General of the Rayong Administrative Court, Clause 2 of Page 8 written that,

“ The distance of 100 meters by Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) promulgated to be in accordance with the Construction Control Act B.E. 2479 and The distance of 200 meters by Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Act B.E. 2479 are not the same line because the Coastline by the Ministerial Regulations Issue 8 (B.E. 2519 ) does not fix at MSL but by the Ministerial Regulations Issue 9 (B.E. 2521) fixes at MSL only.
But the letter of April 30, 2551, sent to Juristic Person manager of Jomthien Complex Condotel ( The Condotel which the 8 Plaintiffs live in ) written with the essence summarized that,

“…. therefore any constructions which applied for a license after December
31, 2521 must have followed Clause 3 which amended by the Ministerial Regulations Issue 9 (B.E. 2521) by the measurement must be made inward onto the land for 200 meters from CCL / or from Coastline at MSL inward onto the land for 100 meters. It will gain the same space of the Construction Prohibited Area on land as same as each other, both in Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 )

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and Clause 3 of the Ministerial Regulations Issue 9 (B.E. 2521), thereby the starting point for measurement is at the Mean Sea Level”.
From the interpretation which stated that the Starting point of measurement to find the Construction Control Line which is the Prior matter of this case which stipulated in Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) and the Ministerial Regulations Issue 9 (B.E. 2521) are not the same distance shown in the Letter dated on June 19, 2550 to the Director-General of the Rayong Administrative Court, and then later it just explained to Juristic Person of the 8 Plaintiffs that it is the same point, shown in the letter of April 30, 2551 as explained to the court. This shows the interpretation which is absolutely different from both letters. It is clearly shown that the Department of Civil Engineer and City Planning did not use Knowledgeable Standard in the interpretation of law including did not study the intention of issuing both Regulations whatsoever, for whatever reasons, the 8 Plaintiffs however are not aware of. But the interpretation of the Department of Civil Engineer and City Planning on both Regulations effect living conditions of the Residents of Jomthien Complex Condotel which including the 8 Plaintiffs and it also effect the Economy of country and the look of Thailand in foreigners’ eye as will be clarified to the court in the later statement of this Appeal.
Therefore the Decision given by the Rayong Administrative Court by using the fact given by the Department of Civil Engineer and City Planning which stated that the Measurement to find the distance from Construction Control Line must starting from the Coastline at MSL first to find Construction Control Line by measuring from Coastline at MSL outward into the sea for 100 meters then it will be the Construction Control Line as shown in the Annexed Map of aforementioned Royal Decree. Then measuring from the Construction Control Line inward onto the land for 200 meters, then it will be the area within the distance of 200 meters measuring from the Construction Control Line….” however, the 8 Plaintiffs can not be in agreement with the aforementioned Decision because it was the interpretation and enforcing of law by taking reasons from one side only which was the Department of Civil Engineer and City Planning and

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did not take the reason submitted by the 8 Plaintiffs which have brought up the point concerning the Intention of issuing the law which is the Main matter of Interpretation of law when there are some unclear laws or stipulations or laws which having any stipulation which is in contrary with the “Note” that is attached with that law. In other meaning is the Intention of issuing the law. Therefore when the Department of Civil Engineer and City Planning is still unable to interpret clearly that the Ministerial Regulations Issue 8 (B.E. 2519 ) and the Ministerial Regulations Issue 9 (B.E. 2521) fix the starting point to measure the Construction Control Line to be the same or different line herein which as shown in both Letters sent by the Department of Civil Engineer and City Planning which consist of statements, opinions which are in contrary with itself completely until it is hard to believe the Standard that the Department of Civil Engineer and City Planning used to interpret the law. So it is considered that the interpretation of the starting point to measure the Construction Control Line of both Regulations is still unclear which may lead to miss-enforcing the law from its Intention. Therefore it is necessity to bring up the Intentions, Principles and Reasons of law to interpret in order for the law to be enforced correctly and fairly.
Therefore the 8 Plaintiffs would like to stated to the Supreme Administrative Court that when the intention of both Regulations intend to take control certain types of construction especially those which being built on land along the beaches, and do not intend to take control down in the sea because the Types of construction under control as shown in Clause 3 (1) – (8) of the Ministerial Regulations Issue 8 (B.E. 2519 ) and the Ministerial Regulations Issue 9 (B.E. 2521) as mentioned, it is seen that they are the types of construction which by their conditions and operation purposes, they are needed to be built on land, absolutely not in the sea which the 8 Plaintiffs already submitted the details of this point in Clause 2.2. Apart from that, if the interpretation is made following the Decision of the Rayong Administrative Court as mentioned, it will allow 2nd Plaint to be able to build its construction which is taller than 14 meters closer to the beach which is in contrary with the Intention of Issuing both Regulations as mentioned as stated by the 8 Plaintiffs already in Clause 2.3.

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2.5 The 8 Plaintiffs would like to add on stating to the Supreme Administrative Court that the Decision given by the Rayong Administrative Court which stated that “……that as referred by the aforementioned Annexed Map of the Royal Decree, it fixes the symbol of CCL (Construction Control Line) away from the Coast Line at MSL for 100 meters which by the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479, it fixes to measure from the CCL, therefore the measurement to find the distance from the CCL must start from the Coast Line at MSL first to find the CCL by measuring from the Coast Line at MSL Outward into the sea for 100 meters to be the CCL as shown on the Annexed Map of the Royal Decree as mentioned. Then measuring from the CCL Inward onto the land for 200 meters, it will be the area within 200 meters measuring from the CCL….” however, the 8 Plaintiffs can not be in agreement with the aforementioned Decision of Rayong Administrative Court by the following reasons which would like to explain to the Supreme Administrative Court;
The Ministerial Regulations Issue 9 (B.E. 2521) amended Clause 3 by fixing the area within 200 meters from the Construction Control Line referred to the Annexed Map of Royal Decree B.E. 2521 without stipulation of detail of the measurement point to know that the 200 meters start measuring from which point. Therefore the interpretation must be made from the Annexed Map of Royal Decree B.E. 2521. The Annexed Map of Royal Decree B.E. 2521 shows the details which involved with this case as follow;

As shown in the Attachment No. 7: The Annexed Map of Royal Decree B.E. 2521.
It shows;
1. The Line pointed by the Arrow “A” ( May the court allow the reference to
be made as a symbol ) with a statement written Coastline at Mean Sea Level.
2. The Line pointed by the Arrow “B” with a statement written 100 meters.
which the Line pointed by the Arrow “B”, there is a definition of the line on the map written that it is the line shows of Construction Control Line.

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If the considerations are made from all Symbols and Definitions on the map however, it is seen that there is no Explanation to show that the Line pointed by “ B” and written 100 meters therein, it is the distance of 100 measuring from which point. Therefore it is not able to interpret that the Measurement of 100 meters from the Line pointed by the arrow at “ A” which written Coastline at Mean Sea Level. If the map is meant to explain that the Lain at Arrow “ B” is located from the Line at arrow “ A” that the Line “B” is the distance of 100 meters from the Coastline at MSL then it must be a clear Explanation as shown on the aforementioned map at C1 and C2 which written their Definitions that “ 40 Meters from the Center of Royal Route No.3”. Therefore the interpretation which made that the Construction Control Area must start from Coastline at MSL outward into the sea for 100 meters which is the Construction Control Line, it is incorrect by the Method of Map Reading.
Apart from that, the 8 Plaintiffs would like to stated to the Supreme Administrative Court that the Ministerial Regulations Issue 9 (B.E. 2521) has amended Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) from “ to fix the area within 100 meters measuring from the Construction Control Line as shown in the Annexed Map of Royal Decree enforcing the Construction Control Act B.E. 2479 over the regions of Banglamung, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province BE. 2499, Along the sea sides to be the prohibited areas for the following types of constructions…. (8) Buildings with the height taller than 14 meters from road surfaces” to be “ to fix the area within 200 Meters measuring from the Construction Control Line as shown in the Annexed Map of Royal Decree B.E. 2521, over the regions of Banglamung, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province BE. 2499, Along the Sea side, to be prohibited areas for the following construction types ……(8) Buildings taller than 14 meters from road surfaces”. It is shown in both Regulations that the Construction Control Area is expanded from 100 to 200 meters from the Construction Control line

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which both aforementioned Regulations did not stipulate which areas are Construction Control but stipulated to use the Annexed Map of Royal Decree as the reference to find the Construction Control Line.
Therefore the interpretation of the Annexed Map of Royal decree B.E. 2521, must be interpreted to be in accordance with the Intention of the Ministerial Regulations Issue 9 (B.E. 2521) which it is unable to interpret to be in contrary with the Ministerial Regulations Issue 9 (B.E. 2521). It is therefore, for the law to be enforced correctly by its intention.
Therefore the Decision given by the Rayong Administrative Court which stated that “…… the measurement to find the distance from the CCL must start from the Coast Line at MSL first to find the CCL by measuring from the Coast Line at MSL Outward into the sea for 100 meters to be the CCL as shown on the Annexed Map of the Royal Decree as mentioned. Then measuring from the CCL Inward onto the land for 200 meters, it will be the area within 200 meters measuring from the CCL….” however, it is the interpretation which allow 2nd Plaint receiver to be able to build its Disputed Building closer to the sea as stated to the court as above. The Decision of the Rayong Administrative Court as mentioned is the interpretation and enforcing of law to take control of involved constructions in the way which is in contrary to the Intention and Purpose of law which always be preserved and protected and the law will not be able to be enforced for Public Benefit Protection as it should be as already explained to the Supreme Administrative Court as above.

2.6 The 8 Plaintiffs would like to add on an explanation to the court that,
by Article 79 of the Construction Control Acts B.E. 2522, stipulated that “All Ministerial Regulations / Local provisions / Provincial provisions / Rules and Regulations / Notices / or Other Orders, which promulgated to be in accordance with the Construction Control Acts of B.E. 2579, or the Construction Control Acts controlling construction over the Burnt areas B.E. 2476 to be able to enforce as long as they are not in contrary with this Royal Decree”. The 8 Plaintiffs see that, not

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only all Ministerial Regulations / Local provisions / Provincial provisions / Rules and Regulations / Notices / or Other Orders, which promulgated to be in accordance with both aforementioned Construction Control Acts will be able to enforce as long as they are not contrary to provision of the Construction Control Acts B.E. 2522, but however the interpretation to enforce the Ministerial Regulations, Local Provisions or aforementioned Order is needed to be interpreted to be in agreement with the intention and purpose of enforcing the Construction Control Acts B.E. 2522 and involved laws also. So that the procedure will be correct by the purpose of the Construction Control Acts BE. 2522. In Article 5 of this Act, it authorizes the Minister of the Ministry of the Interior in issuing Ministerial Regulations for different purposes as stipulated in Article 8 “for the benefit of security, safety, Fire Protection, Public Health, Environmental Quality Preserve/ City Planning/ Architectural and Traffic Servicing including other purposes needed therefore to be in accordance with this Act authorizing the Minister with the Advise from the Construction Control Committee, to be in power in issuing the Regulations to stipulate;
ETC.
( 10 ) The Prohibited Area for constructing / modifying / demolishing / Moving and using / or changing the purposes of the use of certain types / kinds of constructions.

ETC.
Since the Construction Control Acts B.E. 2522 has been enforced until
recently, there have been 12 Ministerial Regulations (which are still active), stipulated to be in accordance with Article 8(10 ), in the part involving beach areas which are public attractions or tourist destinations. The Stipulating is to prohibit certain types of buildings which may cause interference, disturbance and waste products, in the same way to the stipulation of Regulations Issue 8 and 9, which stipulated to be in accordance with The Construction Control Acts B.E.

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2479. Each issue consists of prior matter involving the stipulation of construction prohibited area for buildings taller than 12 meters as follow:
( 1 ) Ministerial Regulations Issue 15 (B.E. 2529 ) Phu-ket Province (Pha-thong beach) Within 150 meters from the 1st area ( according to the map, the 1st area is the distance measured for 50 meters inward onto the land from the shore ) the restricted area in which the Building taller than 12 meters is prohibited.
( 2 ) Ministerial Regulations Issue 20 (B.E. 2532 ) Phu-ket Province (Western shorelines) Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
( 3 )Ministerial Regulations Issue 22 (B.E. 2532) Surat-Thani Province ( Samui Island)
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
( 4 ) Ministerial Regulations Issue 30 (B.E. 2534 ) Phetchaburi Province (Cha-am)
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
( 5 ) Ministerial Regulations Issue 31 (B.E. 2534 ) Chanthaburi Province
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
(6) Ministerial Regulations Issue 36(B.E. 2535) Prachuap-Kirikhun Province (Hua-Hin)
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
( 7 ) The Ministerial Regulations limiting the prohibited area for certain kinds or types of constructions / or modification or changing purposes of building of Pang-Nga Province B.E 2544.
- Within 225 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
( 8 ) Ministerial Regulations (B.E. 2546) limiting the prohibited area for construction, etc. of Trad Province
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
( 9 ) Ministerial Regulations (B.E. 2547) limiting the prohibited area for construction, etc. of Khabi Province
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
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( 10 ) Ministerial Regulations (B.E. 2549) limiting the prohibited area for construction, etc.
of Trang Province
- Within 200 meters from the Coast line shall be the restricted area in which the Building
taller than 12 meters is prohibited.
( 11 ) Ministerial Regulations (B.E. 2549 ) limiting the prohibited area for construc-tion, etc. of Ranong Province
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
( 12 ) Ministerial Regulations (B.E. 2549) limiting the prohibited area for construction, etc. of Sa-toon Province ( excepted Lee-Peh Island )
- Within 200 meters from the Coast line shall be the restricted area in which the Building taller than 12 meters is prohibited.
Apart from that, all above Regulations even define the meaning of Coastline as Natural High Tide
Details shown in Attachment No. 8: 12 Ministerial Regulations
It is shown that by the Construction Control Acts BE. 2522 and involved Regulations enforcing over areas by the sea in the kingdom, all intend to preserve the Environment and the Ecological system along the Coastline within 200 meters measuring from the Coast line which counted at Natural High Tide to be prohibited areas from all types of constructions which may cause the impact, including the buildings taller than 12 meters as mentioned. So the interpretation which said that the Ministerial Regulations Issue 9 ( B.E. 2521 ) stipulates to fix 200 meters from “the Construction Control Line” which is the distance of a 100 meters outward into the sea from the Coast line at the MSL, to be the prohibited area for buildings taller than 14 meters is therefore the interpretation which is in contrary with the purpose of enforcing the Construction Control Acts of B.E. 2522 also.
With the Reasons, Facts and Law Points as stated to the Supreme Administrative Court as above, they show that the intention of issuing the Ministerial Regulations Issue 8 (B.E. 2519 ) and the Ministerial Regulations Issue 9 (B.E. 2521) are both to take control constructions on land, not in the sea. Also it was the stipulation of law to preserve the Environment of cities by the sea. Can be seen from the stipulation which stated the Distance between the sea to

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Prohibited constructions and Types of Prohibited constructions to be the Prior Essences to preserve Environmental Conditions of Tourist Destinations by the sea of Thailand to be beautiful and to remain in good conditions for the future. Also in Clause 2 of the Ministerial Regulations Issue 9 (B.E. 2521) which amended Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519 ) however, stipulated to refer to the Annexed Map of Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province, this is to show the Territory of Construction Control Area. Therefore the interpretation to enforce the Construction Control Area referred to the Annexed Map of Royal Decree B.E. 2521 as mentioned however, must be interpreted to be in accordance with the Intention of Promulgating the Ministerial Regulations Issue 9 (B.E. 2521) also. The 8 Plaintiffs is kindly requesting the Supreme Administrative Court to give a Decision to revoke the Decision of The Rayong Administrative Court.

3. The 8 Plaintiffs would like to stated to court that to interpret the Ministerial Regulations Issue 8 (B.E. 2519 ) and the Ministerial Regulations Issue 9 (B.E. 2521) however, apart from considering Reasons or Intention of both aforementioned Regulations together with Reasons or Intention in stipulating the Royal Decree B.E. 2521 as stated to the court a above, the interpretation must be made to be in accordance with the Thai Royal Constitution as well. The period when the Construction License was issuing to 2nd Plaint Receiver by 1st Plaint Receiver on November 28, 2549, by the Article 3 of the Temporally edition of Thai Royal Constitution B.E. 2549, stipulated that “ under the stipulation of this Constitution, Human Dignity, Rights, Freedom and Equality, all what Thai Population used to be protected by Thailand Administrative Tradition in the Democracy System with His Majesty the King as the President and by National Obligations which Thailand already has had, will be protected by this Constitution”

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Therefore The 8 Plaintiffs would like to stated to court that from the aforementioned Article 3 of the Temporally edition of Thai Royal Constitution B.E. 2549, it stipulated to protect all Rights of Thai Population which used to be protected by Thailand Administrative Tradition in the Democracy System with His Majesty the King as the President, which used to be protected in such the way since before the Temporally edition of Thai Royal Constitution B.E. 2549 was stipulated then all protections must still carry on protecting in such that way which before promulgating this Article 3 of the Temporally edition of Thai Royal Constitution B.E. 2549, Thailand had stipulated and enforced the Thai Royal Constitution B. E. 2540, Article 56 which stipulated that “ The Rights of a person to join with the State and Community in Preservation and Beneficial Gaining from Natural Sources and Biological varieties and in Environmental Quality Protection, Promotion and Preservation in order to prolong Environmental Normal Conditions not to impact such person’s health, living condition or living quality, all are protected”.
Therefore, considering from the Royal Thai Constitution B.E. 2549-Temporally Edition, Article 3 together with the Stipulation of Royal Thai Constitution B.E. 2540, Article 56, they show that they consist of Stipulations and Sanctions in the way that are in agreement with each other and they are Sanctions for benefit of population in the Regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province and the 8 Plaintiffs are counted to be the population of those communities also. Therefore the 8 Plaintiffs have the rights to be protected for Community Rights for those communities to live in the good Environmental conditions, Healthy, Security and Quality. And the Population have duties to preserve their communities and cooperate in preserving and gaining Natural Benefits for Majority of communities and for Life longing of natural Sources and to preserve Lifelong and Balanced conditions of Environment as stipulated to be protected

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by the Royal Thai Constitution B.E. 2540, Article 56, and the Royal Thai Constitution B.E. 2549-Temporally Edition, Article 3.
With the aforementioned reasons therefore the 8 Plaintiffs can not be in agreement with the Decision of Rayong Administrative Court which stated that “….that as referred by the aforementioned Annexed Map of the Royal Decree, it fixes the symbol of CCL (Construction Control Line) away from the Coast Line at MSL for 100 meters which by the Ministerial Regulations Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479, it fixes to measure from the CCL, therefore the measurement to find the distance from the CCL must start from the Coast Line at MSL first to find the CCL by measuring from the Coast Line at MSL Outward into the sea for 100 meters to be the CCL as shown on the Annexed Map of the Royal Decree as mentioned. Then measuring from the CCL Inward onto the land for 200 meters, it will be the area within 200 meters measuring from the CCL …..”
Because if the interpretation of the Ministerial Regulations Issue 9 (B.E. 2521) is made in the way which is not to be in agreement with the Royal Thai Constitution B.E. 2549-Temporally Edition, Article 3 together with the Stipulation of Royal Thai Constitution B.E. 2540, Article 56 thereby, gives the consequences which will make the beautiful Natural Sources and good Environmental conditions and effect Communtity Rights in the Regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province which used to be verified and protected by the Royal Thai Constitution B.E. 2549-Temporally Edition, Article 3 which intends to preserve the beautiful Natural Sources and good Environmental conditions in the aforementioned regions which are Tourist Destinations and the laws protect these areas by prohibiting construction of buildings taller than the height allowed by laws can

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not be protected any longer. The result will allow more buildings taller than listed by laws to be constructed and constructed closer to the beach which will surely effect the Rights to gain benefit from Natural Sources and the Rights to live normally and continuously in good environmental conditions of the 8 Plaintiffs and also the communities in the aforementioned areas in future as these have been protected by the Royal Thai Constitution B.E. 2549-Temporally Edition, Article 3 together with the Stipulation of Royal Thai Constitution B.E. 2540 as by reasons stated to the Court as above.
As for the point concerning the construction of 2nd Plaint Receiver which located within the area of 200 meters measuring from the Construction Control Line referred to the Annexed Map of Royal Decree (B.E. 2521) which the 8 Plaintiffs would like to submit the Pictures taken by a Satellite ( Google Earth ) recently for the Supreme Administrative Court to take for consideration of this case as follow;
Picture 1: Shows the distance of 100 meters from Coastline at MSL to the Disputed Building. The picture shows no another building (which is taller than 14 meters from road surfaces) constructed in the area along the aforementioned Coastline apart from the Disputed Building. If the Court kindly give a Decision to allow the Disputed Building to be built legally however, it will be the cause for the areas along Coastline at MSL to be full of tall buildings until the Environmental conditions along Coastline are absolutely ruined in the near future.
Picture 2: Shows locations of buildings taller than 14 meters which are outside the distance of 200 meters from Coastline at MSL which because originally, the Ministerial Regulations Issue 9 (B.E. 2521) was interpreted that those types of buildings must locate outside the distance of 200 meters from Coastline at MSL.

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Picture 3: is the picture showing the insertion of pictures of buildings
( taller than 14 meters from road surfaces ) in the future which will be constructed within the distance of 100 meters from MSL which will ruin Environmental conditions and Sceneries of Coastline until they are all ruined.

It is shown from all 3 pictures that the building of 2nd Plaint Receiver, after the measurement and calculation the angles are made from these Satellite Pictures then it will be distances of the building of 2nd Plaint Receiver by start measuring at MSL inward onto the land for 100 meters. It shows that the spot at 100 meters from MSL inward onto the land is located close to the building of 2nd Plaint Receiver as shown in the Satellite Pictures # 1. And from Satellite Pictures # 2 however, when the distance is expanded by measuring from MSL from 100 meters, to go deeper for another 200 meters along the seaside inward onto the land, it will show the location of building of 2nd Plaint Receiver which located within the distance of 200 meters of the Construction Control Line. Considering the stipulation, the Types of constructions as in Clause 3 (1) – (8) of both the Ministerial Regulations Issue 8 ( B.E. 2519) and Issue 9 (B.E. 2521) are the prohibited types which if 1st Plaint Receiver still carries on issuing Construction Licenses to build Tall buildings as same as the procedure made to 1st ( wrong word – supposed to be 2nd ) Plaint Receiver as show in Picture # 3 however, it can be clearly expected that if those constructions are allowed to be constructed then they will cause Disturbance, Interference and Waste Products which will certainly impact the Environmental conditions in Banglamung, Nongplalai, Naklua and Nongprue Sub-district, Banglamung District, Chonburi Province both directly and indirectly. It will cause Pour Water condition, Pollution from rubbish, Physical Pollution, Devaluation of Local Population’s Security which will damage the good reputation of Tourist Attraction City of Thailand which have been well-known all around the world. Details as shown in Attachment No.9: Satellite Pictures # 1 – 3.

4. The Royong Administrative Court gave the Decision by summarized that Mr. Kriangchai Panichpakdee, the owner of the Land Title deed No: 1149 has registered the aforementioned Land to become a Servitude land for Walk-

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ways, Driveways, and all types of Utilities for the Land Title deed No: 104606 and No: 123238 and also gave a written letter to allow 2nd Plaint Receiver constructs its building on the aforementioned land. When 2nd Plaint Receiver applied for a Construction License of the Disputed Building by attaching the deed No: 1149 with No. 104606 and No:123238 for application by using it to be the land for the Project road which is 6 meter wide however, even though the building part on the South Side which is the outer edge of building is located only 1 meter from the edge of the land Title Deed No: 1149, but when calculating together with the deed No: 1149 which is the Servitude land and using it to be Project road which is 6 meter wide which all together is 7 meters, then the Disputed Building however, has the outer edge of its building both above or under the ground away from the other person’s land or Public roads for no less than 6(six) meters as referred to Clause 4 of the Ministerial Regulations Issue 33 (2535) which was amended by Clause 7 of the Ministerial Regulations Issue 50 (2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522.
The 8 Plaintiffs would like to state to the Supreme Administrative Court that the act of Mr. Kriangchai Panichpakdee, the owner of the Land Title deed No: 1149 that has registered the aforementioned land to be a Servitude land for Walkways, Driveways, and all types of Utilities for the Land Title deed No: 104606 and No:123238 in Banglamung District, Chonburi Province which 2nd Plaint Receiver is the owner thereby, is only the act that allow both lands of 2nd Plaint Receiver to be able to be operated and gain benefits from using the Title Deed No: 1149 for only Walkways, Driveways, and all types of Utilities as registered and not allow 2nd Plaint Receiver or the Transferees of both lands of 2nd Plaint Receiver to operate the land No: 1149 for another uses or use the land as same as the owner has the right to use for beneficial gaining. Even though 2nd Plaint Receiver is able to use the Servitude Right of the land No: 1149 to be the roads inside Project to be in accordance with Clause 3 of the Ministerial Regulations Issue 33 (2535) which was amended by Clause 7 of the Ministerial Regulations Issue 50 (2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522 which stipulated for the Tall or Extra Large Buildings to have the surrounding roads wider than 6 meters and must have nothing

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cover above the roads all around building in order for Fire trucks to be able to run through easily. The aforementioned is however the different point or part to the point that the law stipulates for Tall or Extra Large Buildings to be located no less than 6 meters from other person’s land as stipulated in Clause 4 of the Ministerial Regulations Issue 33 (2535) which was amended by Clause 7 of the Ministerial Regulations Issue 50 (2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522 which clearly stated that “ the outer edge of Tall or Extra Large buildings whether above or under the ground must locate from the other person’s land or Public roads for no less than 6(six) meters however, not including the foundation of the buildings”.
The 8 Plaintiffs would like to state to the court that the intention of promulgating the Ministerial Regulations Issue 33 (2535) promulgated to be in accordance with the Construction Control Acts B.E. 2522 is to take control construction of Tall or Extra Large buildings for benefits of Security of Strength, Safety, fire Protection, Public Health, City Planning, Architectural and Traffic control including State Utility Development which are the prior matters the law intends to protect for Public Benefits. And for Clause 4 of this Ministerial Regulations, it fixes the outer edge of Tall or Extra Large buildings whether above or under the ground must locate from the other person’s land or Public roads for no less than 6(six) meters however, to preserve Public Benefits by the aforementioned intention and also by Clause 4 of this Ministerial Regulations, it should make each Tall or Extra Large building which is built on each land of different owners with the territories of land attached to each other, should have Set back area outside the building for at least 6(six) meters from each other land territory which will make total Set back at least 12 meters. As for the Land No: 1149 which still owned by Mr. Kriangchai Panichpakdee and both lands of 2nd Plaint Receiver which were used to apply for a construction license of the Disputed Building however, only has the right to operate the land No: 1149 to be just Walkways, Driveways and Utilities as been registered for Servitude only which Mr. Kriangchai Panichpakdee or the Transferees of the land No: 1149 can operate this land for any uses

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as long as it dose not interfere the Servitude uses as mentioned. To take the Land No: 1149 which 2nd Plaint Receiver has limited rights to operate it as for certain benefits or operations as listed by the Servitude Right only then use it to combine or add on with the other person’s land as one part of the land of 2nd Plaint Receiver which is supposed to have Set back area from the other person’s land or Public roads for no less than 6(six) meters as stated in Clause 4 of this Ministerial Regulations however, is in opposite to the stipulation of law completely and it is also possible to expect that the law will not be able to enforce successfully, it means that if the permission is given to an Applicant who wishes to construct any building and for such person to be able to add on the land which has been registered as the Servitude such this way, with the other person’s land as one part of the Set Back distance which is supposed to have Set back distance from the other person’s land or Public roads for no less than 6(six) meters as stated in Clause 4 of this Ministerial Regulations however, in the future, if the owner of the land next door which is the “Parayasab ( Servient Property)” which had been registered as the Servitude land such the same way as mentioned then wishes to apply for constructing a Tall or Extra Large Building on such person’s land, therefore such person still can add on the part of land which has been registered as the Servitude which the building which located on the Samayasab ( Dominant Property ) uses it to be the Set Back Area of 6(six) meters as stated in Clause 4 of this Ministerial Regulations before to be the Set Back Area as stated in Clause 4 of Regulations in constructing such person’s building. It is because the aforementioned land is still owned by that such person. The result of interpretation of law in such the way which allows the Applicant of construction to add on the part of land which has been registered as the Servitude as mentioned to be one of the Set Back Distance which the outer edge of building is supposed to be at least 6 (six) meters from the other person’s land or Public roads as stated in Clause 4 of the Regulations then it will allow Tall or Extra Large Buildings of different owners to be able to be built close to each other by using the Set Back Distance of 6 (six) meters together and no need for the outer edge of building which supposed to have Set back area from the other person’s land for no less than 6(six) meters and no need for Set Back Area between each building at least 12 ( twelve ) meters as intended to have by Clause 4 of the Ministerial Regulations Issue 33 (2535) promulgated to be in accordance with the Construction Control Acts B.E. 2522 which was amended by Clause 7 of the Ministerial Regulations Issue 50 (2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522 to

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protect the benefits of people in general from constructions of Tall buildings and Extra Large Buildings as mentioned.

The 8 Plaintiffs would like to state to the court that in this case, 2nd Plaint receiver had applied for construction which located only 1 (one ) meter from the land No: 1149 of Mr. Kriangchai Panichpakdee, it therefore can be counted that the aforementioned building has its outer edge located less than 6 (six) meters from the other person’s land or road surfaces and it is the circumstance that a personal agreement such as the Servitude Registration which benefiting each other can not be counted to be an exception for avoiding to follow the law which intends to protect Public Benefits. As for the Decision given by Rayong Administrative Court stated that even though the outer edge of building on the South Side located only 1(one) meter from the deed No: 1149 which is under the Servitude Registration for the use of 6 meter Project road and all together is 7 meters. The Disputed Building then has the outer edges of its building both above or under the ground from the other person’s land or Public roads for no less than 6(six) meters as stated by Clause 4 of the Ministerial Regulations Issue 33 (2535) which was amended by Clause 7 of the Ministerial Regulations Issue 50 (2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522, therefore it was the Decision which was error in the points of Reasons and Law points as stated to the court by the 8 Plaintiffs as above.

5. The 8 Plaintiffs would like to state to the Supreme Administrative Court that the Disputed Building of 2nd Plaint Receiver is the tall building consisting of 27 floors or approximately 81 meter tall. It is located in front of Jomthien Complex Condotel which the 8 Plaintiffs live in by facing its front to the sea, which before the Disputed Building was started to be constructed however, the 8 Plaintiffs could receive Sea breeze and can enjoy Sea views without blocking all the time which was the most important reason of buying condominium units of the 8 Plaintiffs and also all foreigners who wish to by residences in Pattaya Area since the past, up to present and future.

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It can not be denied that Pattaya City has been a famous city all around the world and a lot of foreigners have visited as tourists and relocated permanently for their retirements because Pattaya has been a city by the sea with beautiful Coastlines and Beaches which are long and having beautiful sand. Even though Pattaya recently crowed by both Thai and Foreign tourists but Pattaya City however still attracts a lot of foreigners to visit and to stay permanently in their retirement times which is considered to be one of the top cities that generates business for Thailand.
But the 8 Plaintiffs would like to state to the Court that since this case has
Begun, meaning that, since the Disputed Building of 2nd Plaint Receiver has been started with its construction however, both Thai people and Foreigners who live in Pattaya especially foreigners who have bought their residences along the Coastlines, they started having doubts and questioned about the way of how the aforementioned building can be built in front of Jomthien Complex Condotel of the 8 Plaintiffs. And when the aforementioned building carried on building higher then, it started to become their worries that their residences may someday be in the same situation like the 8 Plaintiffs. Since the motion has been filed to Rayong Administrative Court to be the case then, it has very much been followed up by many tourists, Thai people and Foreign residents who live in Pattaya City. And when the Rayong Provincial Administrative Court dismissed this case, then many foreigners both who live in Pattaya and abroad have started to doubt their decisions of living in Thailand especially living in cities by the sea.
Therefore, this case is very important for the Images, Economy and the feelings toward Thai Judicial System of foreigners. So the 8 Plaintiffs wish to ask the Supreme Administrative Court which is the last belief in interpreting and enforcing of laws for kind consideration to interpret the Ministerial Regulations Issue 8(2519) and

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Issue 9 (2521) including the Royal Decree B.E. 2521 to be in accordance with the intention of aforementioned laws to be able to preserve and prolong, maintain all Physical and Biological Environmental Conditions both on land and in the sea of Pattaya City which are important Public Benefits of the country in order to create the Balance between City Development Plans with Good Environmental Conditions to be appropriate and fair to Thailand and so on.
With the aforementioned Facts and Law Points, the 8 Plaintiffs are asking the Supreme Administrative Court to kindly give a Decision to revoke the Decision given by the Rayong Provincial Administrative Court and to cancel the Construction, Modification and Demolition License No: 162 / 2550, Dated: November 28, 2549 of 2nd Plaint Receiver.

Kuan Mikuan Laew Dtair Ja Proed

Appointed Person of the 8 Plaintiffs

Supreme Administrative Court :
http://www.admincourt.go.th/AMC_ENG/Login_eng.aspx

CITY HALL RELY TO THE APPEAL IS BELOW...............

Reply to the Appeal
GARUDA EMBLEM

Black Case No. Or. 415/2552

Supreme Administrative Court

July 1st, 2009

Mr. Tenblue A. J. Maria: 1st and 10 Associates Plaintiffs
Between
Pattaya City Hall Official : 1st and 2 Associates Plaint Receivers

I, hereby the Plaint Receiver: Pattaya City Hall Official by Mr. Ittiphol
Khunpluem, 1st Plaint Receiver, Date of Birth: -, Address: Pattaya City Hall, Street: North Pattaya, Sub-district: Nongprue, District: Banglamung, Province: Chonburi, Zip Code: 20260, Tel: 038 – 253242 – 3 had acknowledged the Appeal of the Plaintiffs and would like to lodge a Reply to the Appeal with the following details;

1) As stated in the Appeal by the Plaintiffs that the Interpretation to enforce the Ministry Regulations Issue 9 (B.E. 2521) made by the Rayong Provincial Administrative Court was the interpretation to enforce the law that was not in agreement with the Intention of Purpose of the Ministry Regulations Issue 9 (B.E. 2521) and the Royal Decree B.E. 2521 which intended to extend the Construction Control Boundary to be wider than the original distance and Section 79 of the Construction Control Act B.E. 2522. The Plaintiffs see that the interpretation to enforce the Ministry Regulations, Local Provision or Order must be interpreted to be in accordance with the purpose of enforcing the Construction Control Act B.E. 2522 and also the involved laws to allow the exercise to be in accordance with the Construction Control Act B.E. 2522, by Section 5 authorizes the Minister of Ministry of the Interior in issuing total 12 Ministerial Regulations for different performances as stipulated in Section 8 (10) in the same way of issuing the Regulations Issue 8 and 9 which stipulated to be in accordance with the Construction Control Act B.E. 2479 to enforce over different regions such as regions in Phuket, Petchaburi, Chanthaburi, Prachuap Khirikhan, Trat, Krabi, Trang, Ranong and Satun Provinces. It is shown that the Construction Control Act B.E. 2522 and the 12 Regulations as refered by the Plaintiffs therein intend to preserve Environment and Ecological System along the Shore within the

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area of 200 meters from Coastline at Natural High Tide. It is prohibited from buildings higher than 12 meters. Therefore, to interpred that the Ministry Regulations Issue 9 (B.E. 2521) fixes the distance of 200 meters from the Construction Control Boundary which located 100 meters outward into the sea from Coastline to be the Prohibited area for buildings higher than 14 meters however is the interpretation which is in contrary with the Prupose of enforcing the Construction Control Act B.E. 2522.

The Plaint Receiver would like to clarify that Section 2 of the Construction Control Act B.E. 2479 ( Attachment No: 1 ) stipulates to enforce this Act since the day

of promulgation by the Royal Decree which will fix to be appropriate with specific area condition of each area, in corroboration of Section 15 fixes the responsibility of Minister of Ministry of the Interior to be responsible in taking charge all performances to be in accordance with this Act and to be empowered to issue Ministerial Regulations or authorize Municipalities to issue Local Provisions to perform to be in accordance with this Act. And especially Section 15 (2) fixes Regulations relating the Specifications of building and Building parts for the benefit of Structural strength, Safety, Fire Prevention, Health and Architecture. Section 15 (4) fixes the Alignment of building along the street to be proper and Regulation relating to the Set back distance from the building to the street, minor street, walk path and other space or between buildings of different owners. Section 15 (7) fixes the Prohibited area for some types of building which the some types of building will not be allowed to be constructed.

The Construction Control Act B.E. 2479 started to enforce in Pattaya Region when the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2499 was promulgated within the Boundary referred to the Annexed Map of Royal Decree ( Attachment No: 2 ) The Map enforcing the Construction Control Act B.E. 2479 created by the Office of Town & City Planning, Department of Civil Engineer and Municipality Planning. The aforementioned map is in accordance with the Annexed Map of Pattaya Government Management Act B.E. 2521. Section 7( Attachment No: 3 ) fixes Pattaya territory and the Ministry Regulations Issue 8 (B.E.2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479( Attachment No: 4 ) by virtue of Section 15 of the Construction Control Act B.E. 2479 to fix the Prohibited area for some types of building to be constructed enforcing within the Boundary of the Annexed Map of Royal Decree promulgated to fix the Construction Control B.E. 2479. Clause 2 of the Ministry Regulations Issue 8 (B.E.2519) fixes the Prohibited Type of Building not to be constructed such as all types of factory, Animal Agricultural Hall which may cause Disturbance and Waste Product which will ruin the Environmental condition. Apart from that, the Ministry Regulations Issue 8 (B.E.2519) by virtue of Section 15 of the Construction Control Act B.E. 2479 to fix the Specifications of

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building and Building parts for the benefit of Structural strength, Safety, Fire Prevention, Health and Architecture as shown in Clause 3 of the Ministry Regulations Issue 8 (B.E.2519) which fixes 8 Types of Building which are prohibited to be constructed within 100 meters measuring from the Construction Control Boundary as shown in the Annexed Map of Royal Decree promulgated to fix the Construction Control B.E. 2479 on the seaside and the Ministry Regulations Issue 8 (B.E.2519) by virtue of Section 15 of the Construction Control Act B.E. 2479 to fix the Alignment of building along the street to be proper and Regulation relating to the Set back distance from the building to the street, minor street, walk path and other space or between buildings of different owners. It is shown in Clause 4 of the Ministry Regulations Issue 8 (B.E.2519) which fixes the Buildings which are Buildings, Houses or Constructions which are built within the area of 100 meters measuring from the Construction Control Boundary as shown in the Annexed Map of Royal Decree promulgated to fix the Construction Control B.E. 2479 on the seaside that must be set back at least 8 meters from the Highway Route: 135 and must be at least 75% of Constructed land to be empty spaces without any building on it.

When the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2521 was promulgated ( Attachment No: 5). The reason of promulgating this Royal Decree was because of the Rapid Growth of constructions over the Regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi and it appeared that some of the constructions were not under the Provision of law governing Construction Control, because the Construction Control Boundary as referred to the Annexed Map of Royal decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2499, could not cover all aforementioned constructed areas. It was needed to amend the Royal Decree by extending the Boundary to be wider especially on the seaside for Local Officials to be able to perform as stipulated by law. Therefore it is necessary to enact this Royal Decree.

When the Boundary is extended to be in accordance with the Annexed Map of Royal Decree promulgated to enforce the Construction Control Act B.E. 2479, the Minister of Ministry of Interior, the Maintainer for this Act to be followed, therefore by virtue of Section 15 of the Construction Control Act B.E. 2479 had issued the Ministry Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 ( Attachment No: 6 ). The Ministry Regulations Issue 9 (B.E. 2521) had cancelled in Clause 1 of the Ministry Regulations Issue 8 (B.E.2519) to change the Enforced areas of the Regulations to be in accordance with the new Royal Decree by fixing the Ministry Regulations Issue 9 to enforce within the Boundary referred to the Annexed Map of Royal Decree promulgated to enforce the Construction Control Act B.E.

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2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2521. After stipulating the Enforced areas by the Ministry Regulations Issue 9 clearly then the Prohibition of construction of the 13 Types of building as referred to the Ministry Regulations Issue 8 (B.E.2519) however still have not been cancelled, therefore it still is enforced in the Regions which are under the Ministry Regulations Issue 9 and the Ministry Regulations Issue 9 (B.E. 2521) has cancelled Clause 3 of the Ministry Regulations Issue 8 (B.E.2519) because there was an amendment made to the Construction Control Boundary to be in accordance with the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2499 by extending to be wider than before as shown in the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2521 on the seaside. The Purpose of issuing the Ministry Regulations Issue 9 (B.E. 2521) is to be in accordance with the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2521 and to be able to enforce the Construction Control Act B.E. 2479 over the regions.

The Performance and Evaluation to be in accordance with the Ministry Regulations Issue 9 (B.E. 2521) of the Plaint Receiver and the Department of Civil Engineer and City Planning were in agreement with each other. As clearly shown in the Fact from the Measurement Inspection made by the Department of Civil Engineer and City Planning witnessed by the Plaintiffs and the Meteorological Department Officials that the Disputed Building of 2nd Plaint Receiver is not located within 200 meters measuring from the Construction Control Boundary as shown in the Annexed Map of the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2521. Therefore the Plaint Receiver herein agrees with the interpretation to enforce the Ministry Regulations Issue 9 (B.E. 2521) of Rayong Provincial Administrative Court which is in agreement with and match the Intention of enforcement of the Construction Control Act B.E. 2522 and all involved laws with every angle.

As the Plaintiffs referred to the 12 Ministerial Regulations which stipulated to be in accordance with the Construction Control Act B.E. 2522, the Plaint Receiver the Plaint Receiver would like to object the comparison made between the Plaint Receiver with the Ministry Regulations Issue 8 (B.E.2519) and Issue 9 (B.E. 2521) which stipulated to be in accordance with the Construction Control Act B.E. 2479 because of the difference of Physical conditions between each area which is enforced by the Ministerial Regulations which stipulated to be in accordance with the Construction Control Act B.E. 2522. Considering for the Strength, Safety, City Planning of each area, the Minister by the advise of the Construction Control Committee therefore considered to issue the Ministerial Regulations to enforce the Construction Control Act B.E. 2522 differently. Therefore all

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12 Ministerial Regulations which claimed by the Plaintiffs however, with different Physical conditions such as provinces and islands, the Coastlines along the Andaman Ocean which are so windy and the shore are cliffy, therefore it is unable to enforce over the regions which are enforced by the Annexed Map of the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi B.E. 2521.

2) As referred to the Attachment No: 5 which is the Letter from Pattaya Mayor to the Secretary of the Office of Natural Source & Environmental Policy and Planning by the Plaintiffs, Dated: April 5th, 2550 by picking up only some statements of the aforementioned letter which stated that the Coastline (High Tide) is located 39 meters from the land of 2nd Plaint Receiver.

The Plaint Receiver would like to clarify that the Building of 2nd Plaint Receiver is the Residential building consists of 912 units which is the type of building that needed to make an Environmental Impact Report to submit to the Office of Environmental Policy and Planning. The Aforementioned letter is the procedure of inspection of the Office of Environmental Policy and Planning by requesting the Plaint Receiver in capacity of the landlord to survey the distance between the Coastline as referred to Clause 4 of the Notification of the Ministry of Natural Source and Environment, Subject: Environmental Control Area and Procedure in the region of Pattaya City, Chonburi Province B.E. 2546 (Attachment No: 7 ) stated that, by the Provision sated in Clause 3 over the regions stated in Clause 2, location 1 which measuring 100 meters from the MSL inward onto the land to be the Prohibited are for all Buildings higher than 14 meters that set back less than 20 meters from the shore and consisting of empty land without covering object less than 30% of the land which had applied for construction however, it is shown that the aforementioned Notification of the

Ministry of Natural Source and Environment is in agreement with the Ministry Regulations Issue 8 (B.E.2519) and Issue 9 (B.E. 2521) which enforcing over the regions of Pattaya.

3) As the Plaintiffs appealed that, the Allowance of Mr. Kriangchai Panitchapak, owner of the Land Title Deed No: 1149, Nongprue Sub-district, Banglamung District, Chonburi Province which allows the aforementioned land which registered to be a Servitude Land for the land of 2nd Plaint Receiver herein is the Exception from following the Ministerial Regulations Issue 33 (B.E. 2535),

The Plaint Receiver would like to explain that as shown in the copy of Land Title deed No: 114, Nongprue Sub-district, Banglamung District, Chonburi Province, the Possessor who is Mr. Kriangchai Panitchapak had registered to be the Servitude land for Walk way, Drive way and all types of Utility for the Land No: 104606 and 123238 of Nongprue Sub-district, Banglamung District, Chonburi Province on November 30th, 2548 as shown in the Memorandum of November 30th, 2548 ( Attachment No: 7 ) before 2nd

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Plaint Receiver applied for the Construction License (Form Kor. 1), Receiving No: 15746, Dated: December 27th, 2548 which Mr. Kriangchai Panitchapak had attached the Allowance Letter to allow to construct on the land Dated: December 26th, 2548 (Attachment No: 9) as well. The Plaint Receiver had explained clearly the Steps of consideration, Charts, Application Forms for the Administrative Court of First Instance to make consideration and hereby confirm that the floor behind the back wall of Disputed Building is located no less than 6 (six) meters from the other persons’ land and a public road and the Fire Truck can get through easily. This is in agreement with the Ministerial Regulations Issue 33 (B.E. 2535) promulgated to be in accordance with the Construction Control Act B.E. 2522 in all respects.

4) From all reasons stated above, the Plaint Receiver sees that the Consideration made to issue the Construction License No: 162/ 2550, Dated: November 28th, 2549 to 2nd Plaint Receiver is the Legal Order and the Decision given be the Rayong Administrative Court is legal in all respects so may the court consider dismiss the Appeal of the Plaintiffs.

Kuan Mikuan Laew Dtair Ja Proed

- Signed - : Plaint Receiver
( Mr. Wattana Chantanawaranoen )
Deputy Mayor of Pattaya City in charge of the function of Pattaya City Mayor

This Reply of the Appeal, I hereby Miss Benjawan Chinapatana, Lawyer Class 5, Pattaya City is the Editor and Typist.

- Signed - : Statement Maker
(Miss Benjawan Chinapatana)
Lawyer Class 5

Reply to the Appeal (From VT7)
Number of Black Case: 54 / 2550 Number of Red Case: 49 / 2552

Supreme Administrative Court

June 26th, 2009

Mr. Tenblue A. J. Maria: 1st and 10 Associates Plaintiffs
Between
Officers of Pattaya City Hall: 1st
View Thalay Jomtien Condominium (1999) Co., Ltd: 2nd Plaint Receivers

I, hereby View Thalay Jomtien Condominium (1999) Co., Ltd…..………..,
By Mr. Preecha Techamualwaiwit, The Appointed Person 2nd,……….......Plaint Receiver
would like to lodge Reply to the Appeal with the following details;

1) In this case, The 10 Plaintiffs entered an Action and added on their Plaint stated that, the 10 Plaintiffs hold possessions of condominium units and live in Jomthien Complex Condotel, Located at Thappraya Road, Moo 12, Nongprue Sub-district, Banglamung District, Chonburi Province. The 10 Plaintiffs were damaged by the performance of 1st Plaint Receiver which was the Permission of the Construction License No.: 162 / 2550, Issued date: 28 November 2549, which permitted View Thalay Jomtien Condominium (1999) Co., Ltd.( 2nd Plaint Receiver ) to construct its Permanent Type Building which was an Extra Large Building, Numbers of building: 1, Type of building: Koh. Soh. Loh. 27 floors with Roof terrace, 912 units with 24 shops, for the Residencial Purpose with the total space: 101, 469 Square Wah, Length of pipes: 1, 261 Meters, Located on the land Title Deed No: 104606 and 123238 Nongprue Sub-district, Banglamung District, Chonburi Province. The building’s territory is connected to Jomtien Beach separated by a garden and Jomtien beach pathway. Jomthien Complex Condotel, it is located on the west side of, and next to the building which received the Construction Permit issued by 1st Plaint Receiver. As for the performance of 1st Plaint Receiver, to issue a Construction License to any buildings to be in accordance with the Construction Control Act B.E. 2522 however, apart from considering its structural strength and safety, the Master plan, Area plan and all of its Attachments with the Plans which had been submitted with the Application for Construction must be up for consideration also, but it appeared that 1st Plaint Receiver had issued the Construction License without following Standards, Procedures and Conditions stipulated in Clause 3 of the Ministry Regulations Issue 8 (B.E.2519) promulgated

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to be in accordance with the Construction Control Acts B.E. 2479 which had been amended and added by Clause 2 of the Ministry Regulations-Issue 9 (2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which fixes the area within 200 meters, by measuring from the Construction Control Boundary, as shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, Along the Sea Sides to be Prohibited Areas for Buildings with the height over 14 meters and the permission was also in violation with Clause 4 of the Ministry Regulations Issue 33 (2535) promulgated to be in accordance with the Building Control Acts B.E. 2522 which had been amended and added by Clause 7 of the Ministry Regulations Issue 50 (2540) promulgated to be in accordance with the Building Control Acts B.E. 2522 which fixes the outer edge of Tall Buildings OR Extraordinary Large Buildings, whether the height above or under the ground, it must be away from the other person’s land / or public road no less than 6 (six) meters, however, it does not include Foundation of building. The aforementioned building which was permitted by the aforementioned Construction License has the constructed building on the Land Title Deed No: 104606 and 123238 which are the lands of View Thalay Jomtien Condominium (1999) Co., Ltd. and the South Wing is the outer edge of building, located just only 1 (one) meter away from the Land alignment of Land Title Deed No: 1149 which owned by Mr. Kriangkrai Panichpakdee, therefore it was contrary to the law for issuing that Construction License. Apart from this, if the building is continue constructing until it is completed, it will certainly block and change wind directions which always blow through Jomthien Complex Condotel, and also it will block Sea view sceneries of Jomtien Beach which will impact physical and mental conditions of 10 Planitiffs and also the other residents who live in Jomthien Complex Condotel. Because the building which granted the Construction License by 1st Plaint Receiver consists of 27 floors or is 81 meters tall, which is almost as tall as the Condominium that the 10 Plaintiffs live in. After 1st Plaint Receiver permitted View Thalay Jomtien Condominium (1999) Co., Ltd. to construct its building, in this present time, the company has started on Landscaping and Pilling which have caused Crack Lines and Parts falling off from the building of Jomthien Complex Condotel, and it also has never had Dust Spreading Prevention from the Construction. They have caused Air pollution and impacted respiratory systems of the 10 Plaintiffs. The 10 Plaintiffs and other Residents of Jomthien Complex Condotel had officially tried to ask for Justice and made an Objection the permission of construction to 1st Plaint Receiver, and also made complaints to involved government sections all along, but the suffering has never been minimized,

Therefore the 10 Plaintiffs then had to institute the prosecution to the court of
law and kindly requested for a Judicial Decision to revoke the Construction License/ Modification License or/Demolish License No: 162/2550, Issued on:28 November 2549

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and give an Order to suspend the construction until the Judicial Decision is given because the 10 Plaintiffs would be severely damaged and hard to be remedied in the future.

The Court gave an Order to call View Thalay Jomtien Condominium (1999) Co., Ltd. to be The Interpleader of this case and fixed it to be 2nd Plaint Receiver.

The Court gave an order to place an Injunction to minimize Injurious consequences before Judgment by ordering 2nd Plaint Receiver to suspend the construction issued by the Construction License No.: 162 / 2550, Issued on: 28 November 2549 before another order or the final decision is given. Both Plaint Receivers lodged their Appeals against the Order of the First Administrative Court and the Supreme Administrative Court gave an Order to cancel the order of the First Administrative Court by allowing 2nd Plaint Receiver to suspend its construction issued by the aforementioned License just for the parts of building which are higher than 14 meters from road surfaces until another order or the judgment is given. After that, 2nd Plaint Receiver submitted a plaint to request the court to revoke the aforementioned Injunction and the court gave the order to lift the aforementioned Injunction on 16 January 2008. Later on, 1st - 6th and 8th - 10th Plaintiffs lodged an Appeal against the Order of Lifting the Injunction given by the First Administrative Court and The Supreme Administrative Court gave an order to stand with the order of the First Administrative Court.

6th and 7th Plaintiffs submitted Notes of 20 February and 17 January 2008 respectively, requested to withdraw the plaint and the court gave an order on 10 March and 7 February 2008 granted 6th and 7th Plaintiffs for the withdrawal respectively.

2nd Plaint Receiver testified and made an Additional Testimony stated that, 2nd Plaint Receiver was permitted by the Construction License No: 162/ 2550, issued date: 28 November B’E’ 2549 legally. Before the Application of the License of the Disputed Building, 2nd Plaint Receiver requested 1st Plaint Receiver to measure for the distance of 100 meters from the Mean Sea Level to see how much and how it might come in the land which requested for the measurement. The Measurement Result showed 49 meters passing a Public area, 51 meters going deep in the land on the North side , 49.50 meters passing a Public area, 50.50 meters going deep in the land on the South side as shown in the Letter of Pattaya City Hall No: Chor. Bor. 52303 / 5548, issued date: 9 September B.E. 2548 which was used by 2nd Plaint Receiver to be the Prior Evidence in

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making a Construction Master Plan to be correct by all stipulations and standards and to be an evidence in applying for another applications from another government sections. The Building of 2nd Plaint Receiver is a permanent built building, type of building: Koh. Soh. Loh.27 Floors with Roof terraces, No. of buildings: 1, Purpose: Residential, consists of 912 units and 24 shops to sell to public. Spaces inside Building: 101,469 Square meters, Parking spaces: 11,708 Square Meters, Swimming Pool area: 1,134 Square Meters and Pipes: 1,261 Square Meters. Total: 115,572 Square Meters. Minimum price estimated for construction (average) is 10,000 Baht per Square Meter. Construction value for the whole project is 1,155,720,000 Baht. When adding these prices with the land price and Management fee which will be added on for the whole project however, the Investment will be no less than Two Billion Baht, therefore the application for construction must have passed approvals from many government sections and attached proper documents must be shown to be evidences in every step of application. Apart from that, 1st Plaint Receiver also issued a letter No: Chor. Bor. 52303/3088, Issued date: 20 April B.E. 2550 requested the Department of Civil Engineer and City Planning of Chonburi Province to proceed the aforementioned procedure which the Department of Civil Engineer and City Planning of Chonburi Province had completed the inspection, then issuing an Inspection Report back to 1st Plaint Receiver which showed that 1st Plaint Receiver had proceeded all procedures correctly. The Measurement Result of the Department of Civil Engineer and City Planning of Chonburi Province showed the distance of 51 meters passing a Public area, 49 meters going deep in the land on the North side, 49.75 meters passing a Public area, 50.25 meters going deep in the land on the South side, therefore the line of 100 meters measured from the Shore line at MSL measured by 1st Plaint Receiver and by the Department of Civil Engineer and City Planning of Chonburi Province are very close to each other. As shown in the Letter of Department of Civil Engineer and City Planning of Chonburi Province No: Chor. Bor. 0020/394, issued date: 25 April 2550. Since both Inspectors were from government Authorities then the measurement result should be considered to be accurate without any doubt. 2nd Plaint Receiver in the capacity of the owner of the land always has the right to operate its land for benefit gaining under provisions of laws. When the 10 Plaintiffs claimed that, if the construction is allowed to be constructed until it is completed as permitted by the Contrary License, it will change wind directions which originally blew through to the Building of the 10 Plaintiffs. And it also block sceneries which used to be able to see the beach and sea until it impacts physical and mental condition of the 10 Plaintiffs and the other residents however, all these claims are not applied by laws. Jomthien Complex Condotel is located on the land which separated by another land on the sea side, therefore all must acknowledge the possibility of another new constructions later, especially the famous Tourist attraction like Pattaya City which fast growth, land prices are very high and there are very little spaces which left empty, therefore there would be tall buildings being constructed in order to gain the most benefit.

As for the Land Title Deed No: 1149 which owned by Mr. Kriangchai Panichpakdee which agreed for the aforementioned land to be the “Servitude” land as the

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Walk way, Drive way and for all types of Utilities for the Land Title Deed No: 104606 and 123238. When 2nd Plaint Receiver submitted the Land Title Deed No: 1149 for the Construction License of the Disputed Building together with the deed No: 104606 and 123238, by the legal right of Servitude by using it to be the road of project on the South side of the building which is over 6 meter wide and it also makes the outer edges of building, weather they are above or under the ground located more than 6 meters away from other person’s lands or public roads and is in agreement with the law.

As the 8 Plaintiffs claimed in the Additional Plaint that the Title deed No: 1149 belonged to Mr. Kriangkrai Panichpakdee, it therefore is the false claim in that Additional Plaint and the aforementioned False Claim however, apart from directly damaged both of the Plaint Receivers therein, it even illegally damaged the involved outsider who had involved in issuing the Construction License of the aforementioned Disputed Building too.

2) On the steps of Enquiry, Rayong Provincial Administrative Court had already examined all the involved files, laws and regulations.

The Facts was found that, on 27 December 2548, 2nd Plaint Receiver who has owned the land Title Deed No: 104606 and 123238, Nongprue Sub-district, Banglamung District, Chonburi Province, had applied for a Construction License to construct a building on the aforementioned land with the deed No: 1149 of Nongprue Sub-district, Banglamung District, Chonburi Province of Mr. Kriangchai Panichpakdee which listed to be the Servitude land of the aforem-entioned two lands referred to the Application for Construction issued date: 26 December 2548. Later on 1st Plaint Receiver had issued the License No: 162/ 2550, issued date: 28 November 2549 to 2nd Plaint Receiver by permitting 2nd Plaint Receiver to build an Extra tall or Extra Large Building permanently, type of building: Koh. Soh. Loh. 27 Floors with Roof terraces, Numbers of building: 1 for Residential purpose, consisting of 912 units and 24 shops, Spaces: 101,469 Square meters on the aforementioned land. Located next to Jomtien Beach. It appreared that the 10 Plaintiffs who own condominium units and live in Jomthien Complex Condotel which located on the West side next to the building of 2nd Plaint Receiver disagreed with the construction. Because it was the application to build a building taller over 14 meters from road surfaces and located within 200 meters from the Construction Control Line as stipulated in Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519) which promulgated to be in accordance with the Construction Control Act B.E. 2479 and had been amended by Clause 2 of the Ministerial Regulations Issue 9 (B.E. 2521) which promulgated to be in accordance with the Construction Control Act B.E. 2479. Also the building itself which located

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on the Land Title Deed No: 104606 and 123238 has its outer edge on the South side located within 6 meters from the land Title deed No: 1149 of Mr. Kriangchai Panichpakdee referred to Clause 4 of the Ministerial Regulations Issue 33 (B.E. 2535) promulgated to be in accordance with the Construction Control Act B.E. 2522 which had been amended by Clause 7 of the Ministerial Regulations Issue 50 (B.E. 2540) promulgated to be in accordance with the Construction Control Act B.E. 2522 and if the construction is allowed to be constructed until it will block sceneries which will impact both physical and mental conditions of the 10 Plaintiffs and the other residents who live in the same building. Therefore, 1st Plaint Receiver should not be able to issue the Construction License to construct any building therein. Apart from that, during steps of landscaping and piling of the building of 2nd Plaint Receiver, they also caused Jomthien Complex Condotel building to have splits and crack lines, also all steps of construction have been done without Dust Spreading Prevention which had caused Air pollution and affected respiratory systems for the 10 Plaintiffs. Later on, the Office of Natural Source & Environment Planning had followed up on the performance of Environmental Impact Protection Procedure of 2nd Plaint Receiver which shown in the Environmental Impact Report of the construction site of 2nd Plaint Receiver and found that, there were still some Miss-Performances and the Qualities were lower than standards such as Sheet Piling on foundation in order to reduce vibration impact and prevent landslide and also there had been before and after hour works. The Office of Natural Source & Environment Planning therefore issued the Most Urgent letter No: Tor. Sor. 1009/ 1779 to request 1st Plaint Receiver to cooperate and take control the project of 2nd Plaint Receiver to follow the Environmental Impact Prevention Procedure including to make consideration to solve the problem within its Authority and Power in order to prevent impacts from the aforementioned project. 1st Plaint Receiver therefore issued an Order No: 197 /2550, issued date: 6 March 2550 to order 2nd Plaint Receiver to re-manage the building which in that time, the step of Piling had been completed, the problem with vibration impact therefore was solved. As for the problem with after hour work which was after 17.00 hr was solved also. Later on, during the court Trials, on the Enquiry date, every party made an agreement for the Department of Civil Engineer and City Planning to make measurement from Coastline at MSL to find the distance of 100 meters, and whether what the result would be, every party would accept the result. The Court therefore ordered the Department of Civil Engineer and City Planning to measure the distance from the Coastline at MSL to the Disputed Building which the result showed that the Building of 2nd Plaint Receiver was located outside the distance of 100 meters from the Coastline at Mean Sea Level.

The Rayong Provincial Administrative Court made consideration and gave the Judicial Decision to dismiss the case.

1st – 5th and 8th – 10th Plaintiffs all together 8 persons lodged an Appeal.
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2nd Plaint Receiver has already received a copy of Appeal and would like
to submit a Reply to the Appeal as will state in the following Clauses in this Reply to the Appeal.

3) The 8 Appellants states in the Appeal that the Appellants are not in agreement with the Decision given by the Rayong Provincial Administrative Court. Thereby all the steps of Facts Hearing, the Interpretation, Enforcement of involved laws in order to take control the construction of the Rayong Provincial Administrative Court as mentioned still have errors and mistakes in points of Facts and Laws which have been preserved. They have affected the Beneficial Interest of the 8 Appellants and also Pulic Benefit concerning the Environmental Preserve by claiming that, the Interpretation of the Construction Control Line following the Ministry Regulations of Issue 9 (B.E. 2521) of the Rayong Provincial Administrative was the interpretation which extending the Construction Control Line into the sea which was in opposite to the Intention or Purpose of the Royal Decree (B.E. 2521) and the Ministry Regulations of Issue 9 (B.E. 2521). If the interpretation is made as the same way as the Decision given by the Rayong Provincial Administrative Court however, it would allow the construction higher that 14 meters from road surfaces to be able to construct closer to the sea and it is in contrary with the Intention of law.

The 8 Appellants continued stating in the Appeal that both lands of 2nd
Plaint Receiver which were used to apply for the Construction License of Disputed Building therein only has the right to use the Land Title Deed: 1149 just to be Walkways, Driveways, and Utilities as been registered to be a Servitude Land. Mr. Kriangchai Panichpakdee or the Transferee of the Land Title Deed: 1149 can still operate the land No: 1149 for any purpose as long as it is not in opposite to the Servitude Right as mentioned. Considering the land No: 1149 which can be used for very limited purposes just for specific reason as Servitude Right by 2nd Plaint Receiver to be a part of the land of 2nd Plaint Receiver which the outer edge of building needed to be Set back from the Alignment of land of the outsider or public road for no less than 6 meters referred to Clause 4 of the Regulations is certainly and clearly in contrary with the provision of law and it also can be guessed that it will cause failure of enforcement of law.

The 8 Appellants also continued stating in the Appeal that since this case
has Begun, Thai citizens and Foreigners who are residents of Pattaya especially foreigners who have bought their residences along the Coastlines, have started having question that how the aforementioned building can be built in front of Jomthien Complex Condotel of the 8 Appellants. And when the aforementioned building carried on being built higher, it has become their worries that their residences may

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someday be in the same situation like the 8 Appellants. Since the motion has been entered to Rayong Provincial Administrative Court to be this case then, it has been followed up by many tourists, local Thai and Foreign residents of Pattaya City. And

when the Rayong Provincial Administrative Court gave the Judicial Dicision to dismiss this case, then it appeared that the aforementioned foreigners who are both residents of Pattaya and abroad have started to doubt their decisions of living in Thailand especially living in cities by the sea. Therefore, this case is very important for the Image, Economy and Credit of Thai Judicial System in foreigners’ feelings.

Therefore the 8 Appellants kindly requested the Supreme Administrative
Court which is the last Patron of the Judicial System in interpreting and enforcing of law, to be kind consider and interpret the Ministerial Regulations Issue 8 (B.E. 2519) and Issue 9 (B.E. 2521) including the Royal Decree B.E. 2521 to be in accordance with the intention of aforementioned laws, in order to preserve and protect and improve both Physical and Biological Environmental Conditions both on land and in the sea of Pattaya City which are very important Public Benefits of the country in order to create the appropriate and fair Balance between City Development Plans and Environmental Quality Conditions for Thailand for good. May the Supreme Administrative Court to kindly give a Decision to revoke the Decision given by the Rayong Provincial Administrative Court by cancelling the Construction, Modification and Demolition License No: 162 / 2550, Dated: November 28, 2549 of 2nd Plaint Receiver.

4 ) 2nd Plaint Receiver would like to state to the court that the Construction, Modification and Demolition License No: 162 / 2550, Dated: November 28, 2549 which happened to be issued to 2nd Plaint Receiver by 1st Plaint Receiver in this case however, is the License which has been issued legally completely. All references of Laws which have been used to consider the Verdict of this case are as follow;

4.1 Construction Control Act B.E. 2522,

4.2 Ministry Regulations Issue 8 (B.E. 2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which was amended by the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479,

4.3 Royal Decree promulgated to enforce the Construction Control Acts B.E. 2479 over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521,

AND
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4.4 Ministerial Regulations Issue 33 (B.E. 2535) promulgated to be in accordance with the Construction Control Acts B.E. 2522 which was amended by the Ministerial Regulations Issue 50 ( B.E. 2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522.

The Statement in Clause 3 of the Ministerial Regulations Issue 8 (B.E.
2519) promulgated to be in accordance with the Construction Control Acts B.E. 2479 which was amended by the Ministerial Regulations Issue 9 (B.E. 2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479 stated that “ 3) To fix the area within the distance of 200 meters measuring from the Construct Control Line as shown in the Annexed Map of the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-districts of Banglamung District, Chonburi Province B.E. 2499, on the sea side to be the prohibited area for the following types of constructions.
(1) Gasoline or Petrol warehouse and distributor
(2) Entertainment Hall
(3) Row house
(4) Commercial Building
(5) Fresh Market
(6) Car or Motorcycle fixing or color spraying Garage
(7) Warehouse
(8) Building higher than 14 meters

The building higher than 14 meters from road surfaces is one of the Buildings which will be built on the land Title Deed No: 104606 and No: 123238 as permitted by the Construction License No: 162 / 2550, Issued Date: November 28th, 2549. Therefore it should be considered that, the building higher than 14 meters, is or is not located within the area of 200 meters measuring from the Construct Control Line as shown in the Annexed Map of the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Naklua and Nongprue Sub-districts of Banglamung District, Chonburi Province B.E. 2499, on the sea side. Therefore, the Annexed map of the aforementioned Royal Decree has to be up for consideration and reading. It is clearly shown after consideration is made that the Construct Control Line on the sea side referred to the aforementioned map is located at the point of 100 meter outward into the sea pass the

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Coastline at Mean Sea Level (MSL). Therefore when the measurement is made 100 meters outward into the sea from the Coastline at MSL then return for 200 meters inward onto the land which will be constructed and whether which alignment is gained from measurement, that alignment then will be the Prohibited area for constructions higher that 14 meters from road surfaces. In other meaning is, if the measurement is made from the Coastline at MSL inward onto the land for 100 meters and whether which alignment is gained, that alignment then will be the same alignment to the distance of 200 meters measuring from the Construct Control Line as shown in the Annexed Map of the aforementioned Royal Decree and do not need to bring any intention to consider whatsoever.

5) On the steps of Enquiry, the Department of Civil Engineer and City Planning proceeded the measurement to fine the distance from CoastLine at MSL to the Disputed building as ordered by the court from 15th until 17th November 2550, by the procedure was witnessed by both Parties and the Officials from the Department of Thai Meteorological. On Procedure, the Department of Civil Engineer and City Planning started measuring from the Bench Mark (B.M.) at Or.Dtor. MSL Chor.Bor. 0029 which valued 58.989 meters from the MSL around the area of the Department of Thai Meteorological (Pattaya) on Thappraya Mountain by using the Specific type of camera with Level Transference method to transfer levels down along the road until reaching Jomtien Beach and then carry on walking to measure along the footpath until reaching the location of construction project of 2nd Plaint Receiver for the distance approximately 3.50 kilometers and using the Camera Method from the front of aforementioned project to return back along the same way until reaching B.M. On Thappraya Mountain to inspect the accuracy. Each spot which passed the measurement was marked by the Temporary B.M.( T.B.M.) for the whole distance. And for the area of Jomtien Beach in front of the Constructed project of 2nd Plaint Receiver however, there were 2 T.B. Marks made which were at MSL at 0.00 meter and at 1.4477 meters and measuring from both Marks until reaching the front of Disputed building together with marking the Evidence Marks there. By the result of measurement as shown on the Chart submitted to court, appeared that the distance of 100 meters from the Coastline at MSL on the North side which passed Public areas for 50.15 meters and deep into the land of 2nd Plaint Receiver for 49.85 meters. As for the distance on the South side passed Public areas was 49.60 meters and deep into the land of 2nd Plaint Receiver for 50.40 meters. The part which is higher than 14 meters from road surfaces the Disputed building was further than 100 meters from the Coastline at MSL. From the aforementioned Standard and Procedure of Department of Civil Engineer and City Planning however, it showed that the Department of Civil Engineer and City Planning proceeded its measurement method correctly and thereby when it appeared that the distance from the Disputed building of 2nd Plaint Receiver is further than 100 meters from the Coastline at MSL, therefore the Disputed building is certainly not located within the area of 200 meters measuring from the Construction Control Line as shown on the Annexed Map of the Royal Decree promulgated to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung,

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Nongplalai, Naklua and Nongprue Sub-districts of Banglamung District, Chonburi Province B.E. 2499. By Clause 3 of the Ministerial Regulations Issue 8 (B.E. 2519) promulgated to be in accordance with the Construction Control Act B.E. 2479 which was amended by Clause 2 of the Ministerial Regulations Issue 9 ( B.E. 2521) promulgated to be in accordance with the Construction Control Acts B.E. 2479. The Permission of Construction License referred to this Motion however, is therefore not forbidden by law herein.

6) As for the claim of 1st – 5th and 8th – 10th Plaintiffs in the Appeal that the building part on the South side which is the outer edge of building located less than 6 (six) meters from the boundary land of Mr. Kriangchai Panichpakdee however, when Mr. Kriangchai Panichpakdee, the owner of the Land Title deed No: 1149 has registered to the Land Officials on 30 November 2548 for the aforementioned land to become a Servitude land for Walkways, Driveways, and all types of Utilities for the Land Title deed No: 104606 and No:123238 and also made a letter to allow 2nd Plaint Receiver to construct its building on the aforementioned land on 26 December 2548. 2nd Plaint Receiver therefore received the right to the Servitude status of the land No: 1149 by Juristic Act which enforcing Mr. Kriangchai Panichpakdee and the outsiders or Transferees of ownership of the Land No: 1149 to be unable to operate the aforementioned land in the way that is in contrary with the uses of Walkways, Driveways, and all types of Utilities for the Land Title deed No: 104606 and No: 123238 by law. Later on, when 2nd Plaint Receiver applied for a Construction License of the Disputed Building by attaching the deed No: 1149 with No. 104606 and No: 123238 when the Application is submitted, by using it to be the 6 meter wide Project road which shown in the Connection Chart of the Deed No: 104606 and No:123238 together. The outer edge of the building on the South Side is located only 1 (one) meter from the deed No: 1149. But when adding to the deed No: 1149 which is the Servitude land for the Land Title deed No: 104606 and No: 123238 and using it to be the 6 meter wide Project road, which all together would be 7 meters, then the Disputed Building however, has the outer edges of the building for both above or under the ground located no less than 6(six) meters from the other person’s land or Public roads referred to Clause 4 of the Ministerial Regulations Issue 33 ( B.E. 2535) promulgated to be in accordance with the Construction Control Acts B.E. 2522 which was amended by Clause 7 of the Ministerial Regulations Issue 50 ( B.E. 2540) promulgated to be in accordance with the Construction Control Acts B.E. 2522 herein.

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7) 2nd Plaint Receiver would like to respectfully state that, the Regions of
Nongprue Sub-district, Banglamung District, Chonburi Province which is the area that the Disputed building is constructed on however, has been listed to be the Commercial Red Zone. The land is set to be mainly used for Commercial, Residential, Government Officials, Utility Purposes referred to the Law governing the Pattaya City Chart. The aforementioned area is therefore not forbidden and the Construct License of Disputed building is able to be issued legally for Residential purpose.

Every point of the Appeal of 1st – 5th and 8th – 10th Plaintiffs is not found.

May the Supreme Administrative Court kindly make consideration and give a Judicial Decision to stand the Decision given by the Rayong Provincial Administrative Court.

Kuan Mikuan Laew Dtair Ja Proed

- Signed - : 2nd Plaint Receiver
( Mr. Preecha Techamualwaiwit )
Appointed Person

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Tuesday, December 1, 2009

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Friday, August 7, 2009

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