The Supreme Court of Administration Decision 19 of June 2008

Order ( Dtoh. 21 )

GARUDA

(Official Emblem )

Number of Petition: 227 / 2551 Number of Order: 313 / 2551

IN THE NAME OF THE KING

The Supreme Court of Administration

23 May 2008

Mr. T, 1st Litigant

Mr. A 2nd

Mr. J , 3rd

Mr. R H 4th

Mr. M 5th

Mr. U 6th

B. 7th

S 8th

B 9th

Mr. M 10th

Between

Plaint Receiver

Officers of Pattaya City Hall 1st

View Thalay Jomtien Condominium (1999) Co., Ltd. 2nd

Matter: The Contentious case involving the misconduct of government officers

( The Appeal against the Rejection Order, refusing to accept the Appeal

against the Order of lifting the Injunction before judgment )

- The Official Stamp of The Supreme Court of Administration -

- Dated: 23 May 2008 -

/ The First Litigant…

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The 1st Litigant up to 5th Litigant, and 8th Litigant up to 10th Litigant lodged the Appeal against the Order in the Black Case No.: 54 / 2550, of the First Administrative Court ( The Administrative Court of Rayong )

In this case, The 10 Litigants clarified that the 10 Litigants hold

possessions of the condominium units and live in Jomthien Complex Condotel, 1st Building, Located at Thappraya Road, Moo 12, Nongprue Sub-district, Banglamung District, Chonburi Province. The 10 Litigants 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 pipes: 1, 261 Meters, Located in Nongprue Sub-district, Banglamung District, Chonburi Province. The building’s territory is connected to Jomtien Beach by having a garden and Jomtien beach walkway in the middle. As for Jomthien Complex Condotel, it is located on the west side of, and next to the building that received the construction permit which was issued by 1st Plaint Receiver. 1st Plaint Receiver issued the construction permit by being in contrary to the regulations, methods and conditions stipulated in the Ministry Regulations of Issue 9 ( 2521 ), promulgated to be in accordance with the Construction Control Acts of B.E. 2479, clause 3, which fixes the area within 200 meters, by measuring from the Construction Control boundary, that shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, stated that the lands on the sea sides are prohibited from the aforementioned types of buildings to be constructed. And the stipulation of clause 3 ( 8 ) stated that the constructions which is 14 meters high from the road surface are not up to standard requirement to be allowed for construction. The aforementioned Ministerial Regulations was in force on 23 November 2521 until the present time, without amendments or cancellation, however. If the construction would continue until it is complete, it would have been the cause of changing directions of the wind and blocking the wind which normally blows through to Jomthien Complex Condotel, also it would block the beach front view that have been

able to see from the beginning,……………………………………….

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and Jomtien beach view, which impact physical and mental conditions of the

10 Litigants and also the other residents of Jomthien Complex Condotel. Because the building which was allowed to be constructed by 1st Plaint Receiver is consist of 27 floors / or 81 meters high, which is very close to the height of the condotel that the 10 Litigants live in. After 1st Plaint Receiver issued the license to View Thalay Jomtien Condominium (1999) Co., Ltd. to construct the building, in this present time, the step of landscaping and piling have begun and they caused Jomthien Complex Condotel building to have split and crack lines, also all steps of construction have been done without dust spreading prevention. They caused air pollution and effected respiratory system. The 10 Litigants and residents of Jomthien Complex Condotel had officially tried to object the permission of construction to 1st Plaint Receiver, and also made complaints to involved government sections all along, but the suffering has never been solved, so the 10 Litigants then had to institute the prosecution to the court of law.

The requests for the court to kindly give judgments or orders are as follow;

1. To give an order to minimize the force by suspending the construction license No.: 162 / 2550, Issued on: 28 November 2549 before another order or the final decision is given, and take effect back dated to 28 November 2549. Because 10th Litigants would be extremely damaged until not being able to be solved in the future, if View Thalay Jomtien Condominium (1999) Co., Ltd. still be allowed to continue with its construction.

2. To cancel the construction license No.: 162 / 2550, Issued on: 28 November 2549 which was issued to View Thalay Jomtien Condominium (1999) Co., Ltd. The First Court of Administration gave an order for View Thalay Jomtien Condominium (1999) Co., Ltd. to be an interpleader in this case and determined it to be 2nd Plaint Receiver.

The First Court of Administration made enquiries of both parties on the step of requesting to place the injunction to minimize injured consequences before judgment of the 10 Litigants, and the decision was made as, in this case, the prior point that has been disputed by both parties is the distance from the building, by the Ministerial Regulations of Issue 9 ( B.E. 2521 ), stipulated to be in accordance with the Construction Control Acts of B.E. 2479, which directly involves with the Construction……

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Control Boundary that shown on the Annexed Map of the Royal Decree, stimulated to use the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521. The 10 Litigants and 1st Plaint Receiver have different understanding in the starting point of measurement of the aforementioned Ministerial Regulations. The 10 Litigants fixed the starting point at the lowest point of low tide, but 1st Plaint Receiver fixed the distance of 100 meters outward from highest level of high tide. Therefore, to be able to judge this case, the court needs to inspect carefully and find out the starting point of measurement which was stated in the Ministerial Regulations of Issue 9 ( B.E. 2521), promulgated to be in accordance with the Construction Control Acts of B.E. 2479, also to find out if the distance of the dispute building from that point is not in violation to the law. The inspection will take some time. If the building is still constructed continuously, and if the court would finally revoke the construction license as requested by the 10 Litigants, then it might bring severe damages to the 10 Litigants. This matter gives enough reason for the court to order the Injunction as requested by the 10 Litigants.” The Court, therefore, ordered 2nd Plaint Receiver to seize the construction which had been permitted under the Construction License No: 162 / 2550, Issued on: 28th November 2006 until the final decision or other order is given, since the order have been received.

The 2nd Plaint Receiver, then lodged the Appeal against the order of placing the Injunction to minimize injurious consequences of The First Court of Administration and The Supreme Court of Administration, then gave an supremacy order to amend the order of The First Court of Administration, to be the order of regulating 2nd Plaint Receiver to temporally seize the steps of construction under the construction license No.: 162 / 2550, Issued on: 28th November 2006, only for the part of the building which is higher than 14 meters from the road surface until the decision is given or another order is made by the court.

The First Court of Administration has preceded the enquiry by ordering the Department of Civil Engineering and City Planning to measure and find the distance between the coast line at the Mean Sea Level (MSL) which is in accordance with the Royal Decree, stimulated to use the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung,………………..

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Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, to the dispute building, together with the order to present to the court the brief layout or chart, which the layout was made as ordered and presented by the Department of Civil Engineering and City Planning, summarizing that, to fix the coast line at Mean Sea Level, the measurement must be started at the point of 0.00 meters of the Mean Sea Level. When the measurement is made 100 meters outward to the sea, then it will be the Construction Control Boundary that shown on the Annexed Map of the Royal Decree, stimulated to use the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, then made another 100 meters from the aforesaid point into the land, then it will be the distance of 200 meters of the Construction Control Boundary, as stipulated in clause 3 of the Ministerial Regulations of Issue 8 ( B.E. 2519 ), stipulated to be in accordance with the Construction Control Acts of B.E. 2479, which had been amended by adding the Ministerial Regulations of Issue 9 ( B.E. 2521), which stipulated to be in accordance with The Construction Control Acts of B.E. 2479, which stated to prohibit the building with the height over 14 meters from the road surface. The measurement result reported that the building of 2nd Plaint Receiver is not in the boundary of 200 meters.

2nd Plaint Receiver requested the First Court of Administration to lift the injunction before the decision is made.

The First Court of Administration questioned both parties and witnesses and considered that, in this case, the court ordered to temporally place the injunction before the decision is made as requested by the 10 Litigants with the prior reason that, to proceed enquiries of this case, the court needs to inspect carefully and find out the starting point of measurement which was stated in the Ministerial Regulations of Issue 9 ( B.E. 2521), promulgated to be in accordance with the Construction Control Acts of B.E. 2479, also to find out if the distance of the dispute building from that point is not in violation to the law. But the measurement following the order of court, reported by of the Department of Civil Engineering and City Planning, together with the witness’s testimony, stated that, the dispute building is located more than 100 meters from the Mean Sea Level. With the consideration of court, considering the measurement of 100 meters, from the Mean Sea Level, outward into the sea which was reported and testified by the witness, to be the Construction Control Boundary, shown on the Annexed map of the Royal Decree, which stipulated to enforce the Construction Control Acts of ………

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B..E. 2479, to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, the contrary building will be over 200 meters of the Construction Control Boundary, and also as stipulated in the aforementioned Ministerial Regulations. Therefore, the matters of facts which have been used in consideration of court have changed, and the reasons to continue placing the Injunction becomes insufficiency. The court then, ordered to lift the Injunction which was the order of stopping the 2nd Plaint Receiver from building the construction higher than 14 meters from the road surface temporally, until the final decision or the other order is given, following Clause 77 of the regulations of the Grand Administration Meeting of the Supreme Court of Administration, governing the Administrative Procedures of B.E. 2543, together with Article 262, Phrase 1 of the Civil Codes, which have brought in to be enforced compromisingly.

7th Litigant withdrew his name out of being one of all litigants, by the document dated on 17 January 2551 and the First Court of Administration permitted the withdrawal of 7th Litigant.

1st – 6th and 8th – 10th Litigants lodged the Appeal dated on 15 February 2551 against the order of lifting the injunction given by the First Court of Administration. The request was asking for the supremacy order from the Supreme Court of Administration to amend the order given by the First Court of Administration, and to order the injunction to be able to continue taking effect before judgment as requested by the 9 Litigants.

The First Court of Administration considered that, as stated in Clause 76, 2nd and 3rd phrases of The Regulations of the Grand Administration Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, it shows that, there are only 2 circumstances involving the consideration about the injunction before judgment during trials by the Administrative Court. One is the circumstance of which the court gives the order to reject or lift or cancel the request of the litigant, this type of order is considered to be the supremacy order, and the other circumstance is in the case of which the court gives the order to place the injunction, the interested person has the right to lodge the Appeal against this order, temporally, the interested person has the right to lodge the Appeal to the Supreme Court of Administration. In this case, the court originally gave an order to place the injunction to minimize injurious consequences…..

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Before judgment as requested by the 9 Litigants. The 2nd Plaint Receiver, therefore, used the right to lodge the Appeal to the Supreme Court of Administration, and the Supreme Court already gave the order to replace the former order which was given by the First Court of Administration. When later on, the facts and reasons to continue placing the injunction became insufficiency. The court then, cancelled the aforementioned order to minimize injurious consequences. This circumstance, however, gave the same effect as the rejection / or cancellation of the request which was requested by the 9 Litigants, therefore, this order is the supremacy order as stated in Clause 76, 2nd Phrase of the aforesaid Regulations, and the 9 Litigants can no longer lodge the Appeal. This Appeal of the 9 Litigants is forbidden to be proceeded by law, the First Court of Administration then gave the order to reject the Appeal of the 9 Litigants.
6th Litigant withdrew his name out of being one of all litigants, by the

document dated on 20 February 2551 and the First Court of Administration permitted the withdrawal of 6th Litigant.
1st – 5th and 8th – 10th Litigants lodged an appeal against the rejection order which refused to accept the appeal against the order of lifting the injunction before final decision is made, given that order by the First Court of Administration, the matters stated that, the order given out to lift the Injunction is another step of trial and ordering after the injunction was ordered by the First Court of Administration and the Supreme Court of Administration, to be placed before the final decision is made / and it is NOT the order that would give the same effect to reject / or cancel the request which was filed by the 8 Litigants, because that order is the final order and it is prohibited for appealing, as stated in Clause 76, 2nd Phrase of the mentioned Regulations. Because of no stipulation in the aforesaid law / or regulations to state that, the order of lifting the injunction before judgment, given by the First Court of Administration is the FINAL ORDER The aforesaid order……….

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is considered to be another type of order, which is allowed to appeal during trial, as stated in Clause 100, 2nd phrase, which stated that the interested persons have the right to lodge an appeal against the aforesaid order, to the Supreme Court of Administration within 30 days from the day of receiving that order, given by the First Court of Administration, as stated in Clause 49 /1 and Clause 100, 1st Phrase of the Regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, which is in agreement with the point of law in the Civil Codes, which stipulated the right to lodge an appeal against the amending order / or canceling order, which is temporally, and stated in Article 262, is the order that is allowed to appeal, and according to Article 228 (2 ) of the Civil Codes, the appeal must be lodged within 30 days. Also the points in the appeal of the 8 Litigants are suitable to be taken for consideration for the judgment to be given by using the standard in consideration of the Supreme Court of Administration. Therefore, the request which was made to the Supreme Court of Administration is for the Supreme Court of Administration to give the supremacy order to change the order of the First Court of Administration, by ordering to accept the appeal of the 8 Litigants for consideration.
The Supreme Court of Administration considered and acknowledged that, the stipulation in Clause 75 of the Regulations of the Grand Administrative Meeting of the Supreme Court stated that, apart from the circumstance which mentioned in Clause 69, at all times, before the final court decision is given, the litigant may institute the petition to request for any procedure to minimize the injurious consequences before the final court decision is given, / or the other party may file the request for the court to order the procedure to protect the benefit during trial / or to enforce the act follow the court’s decision. In Clause 76, 2nd Phrase, stipulated that the cancellation or rejection order against the petition of request of the litigant is the supremacy order. And in 3rd Phrase stipulated that, the interested persons have the right to lodge an appeal against the order of placing the procedure to minimize the injurious consequences before the judgment is given / or the procedure to protect the benefit of the litigant during trial, / or to enforce by the court’s decision, to the Supreme Court of Administration within 30 days from the day of receiving or being informed about that order. In Clause 100, 1st Phrase, stated that, the court’s decision / or order given by the First Court of Administration, which has not been stipulated to be the supremacy or final order, can be appealed to the Supreme Court of Administration, and in 2nd Phrase, stated that, the order during trial which has not been stipulated by this regulations to be able to appeal during trial, must be appealed together with the appeal against the judicial decision / or order that finalize the case out of the consideration of court. And in Clause 49 / 1, 1st Phrase, stated that, the order of the First Court of Administration which refusing to accept the petition for consideration, ………….

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the order of disposing the case out of record without the definite final decision, / the order of punishment the charge of infringement of the jurisdiction of courts following the Article 64 / or another orders which are not prohibited to appeal during trial by Clause 100, 2nd Phrase, stated that, the interested persons have the right to lodge an appeal against the aforementioned orders to the Supreme Court of Administration within 30 days since receiving the order given by the First Court of Administration. And in 2nd Phrase, stated that, the petition stated in 1st Phrase shall be lodged to the First Court of Administration which given out that order, and the court officer shall send the petition, together with the order of the First Court of Administration, also involved documents / or copies of documents, immediately, to the Supreme Court of Administration.

In this case, originally, The First Court of Administration ordered to

place the Injunction to minimize injurious consequences by ordering 2nd Plaint Receiver to seize the construction under the construction license NO.: 162 / 2550, Issued on: 28th November 2006, until receiving another order or the judgment. 2nd Plaint Receiver, then lodged an appeal against the order of placing the injunction, given by the First Court of Administration, / and the Supreme Court of Administration had given the supremacy order to change the former order of the First Court of Administration by ordering 2nd Plaint Receiver to seize the construction under the construction license NO.: 162 / 2550, Issued on: 28th November 2006, only for the part of the building which is higher than 14 meters from the road surface until the decision is given or another order is made by the court. When the First Court of Administration has preceded the step of enquiry by ordering the Department of Civil Engineering and City Planning to measure and find the distance between the coast line at the Mean Sea Level (MSL) , together with presenting the brief layout or chart to the court, the Department of Civil Engineering and City Plannin reported to the court that,

the contrary building is located outside the Construction Control Boundary, as shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, along the seaside, more than 200 meters, as stipulated in Clause 3 of the Ministerial Regulations of Issue 8 ( .E. 2519 ), which stipulated to be in accordance with the Construction Control Acts of B.E. 2479, which had been amended by adding the Ministerial Regulations of Issue 9 ( B.E. 2521), which stipulated to be in accordance with The Construction Control Acts of B.E. 2479. 2nd Plaint Receiver then, lodged a petition to request for the cancellation of the injunction before final court’s decision is made, and the First Court of Administration then making enquiries, by questioning both parties ………………

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and the witnesses, and then considered that, the matters of facts which have been used in consideration of court have changed, and the reasons to continue placing the Injunction becomes insufficiency for the order to remain the same. The court then, ordered to lift the Injunction which had been the order of stopping the 2nd Plaint Receiver from building the construction higher than 14 meters from the road surface temporally, until the final decision or the other order is given, following Clause 77 of the regulations of the Grand Administration Meeting of the Supreme Court of Administration, governing the Administrative Procedures of B.E. 2543, together with Article 262, Phrase 1 of the Civil Codes, which have brought in to be enforced compromisingly.

Even though the order of lifting the injunction before final decision is made, which given by the First Court of Administration, shall take the same effect to the rejection or cancellation of the request which was filed by the litigants, which was the request to place the injunction, however, it is NOT THE ORDER OF LIFTING OR CANCELLING THE REQUEST of the litigants which requested the court to temporally place the injunction before the final court’s decision is made.

The Supreme Court of Administration is however, not in agreement with the consideration of the First Court of Administration on the matter that the First Court of Administration considered the effect of the order of lifting the injunction to be as same effect taken by the rejection or cancellation of the request which was filed by the litigants, which was the request to place the injunction before the final court’s decision is made. The aforementioned order is stipulated to be the supremacy order as stated in Clause 76, 2nd Phrase of the regulations of the Grand Administration Meeting of the Supreme Court of Administration, governing the Administrative Procedures of B.E. 2543. And thereby, the order of lifting the injunction given by the First Court of Administration is the type of order which was not stipulated to be the supremacy order, following the Administrative Control Acts and the Administrative Procedures of B.E. 2542 / and the Regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, the litigants have the right to appeal to the Supreme Court of Administration by following Clause 100, 1st Phrase of the mentioned regulations.
The only issue that needed to be taken to the consideration will be about the order of lifting the injunction / or canceling the protection procedure to minimize the injurious consequences before final court’s decision is made, ………

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Given by the First Court of Administration is either the order during trial which is prohibited to appeal during trial, as stated in Clause 100, 2nd phrase of the same regulations / or NOT.

The result of consideration agreed that, while the contentious case between the 8 Litigants and 2 Plaint Receivers is on trial of the First Court of Administration, the order of lifting the injunction or procedure to minimize injurious consequences which was the order for 2nd Plaint Receiver to seize the construction under the construction license No.: 162 / 2550, Issued on: 28 November 2549, only for the part of the building that is above 14 meters from the road surface, until receiving the Judicial decision or another order, which given by the First Court of Administration, is NOT the judicial decision or order to finalize the case out of court’s consideration, so it is considered that, the aforementioned order is an order during trial. Even though there is no obvious stipulation which is clearly clarified the right to appeal in the regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, unlike the obvious stipulation of which stipulated the right of the interested persons, in able to lodge an appeal against the order of lifting the injunction during trial of the First Court of Administration, however, but it is shown by the reason of the matter that, The Litigants should receive the same right as the interested persons receive to be able to lodge an appeal against the order of lifting the injunction before judgment, during the trial. Allowing the litigants to lodge an appeal against the aforementioned order, including against the judicial decision / or the court order which definitely finalize the case out of court’s consideration and trial, as stated in Clause 100, 2nd phrase of the regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B. E. 2543, will not benefit the litigants. Thereby, if the Supreme Court of Administration considers that the matters in the appeal of the litigants is strong, the litigants will loose the temporally protection during trial of the First Court of Administration IN TIME, the matter is considered that the order of lifting the injunction during trial, given by the First Court of Administration is NOT THE PROHIBITED ORDER for appealing during trial, as stated in Clause 100, 2nd phrase of the regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B. E. 2543. Therefore, the 8 Litigants, then have the right to lodge an appeal against the aforementioned order to the Supreme Court of Administration within 30 days from the day of receiving the order given by the First Court of Administration, as stated in Clause 49 /1, 1st phrase of the mentioned regulations. The First Court of Administration should…………

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should assign the court officer to send the Appeal against the order dated on 15 February 2551 of the 8 Litigants, including the order of lifting the injunction given by the First Court of Administration and all involving documents / or copies of documents to the Supreme Court of Administration within the short period of time, following Clause 49 / 1 of the same regulations। The decision of giving out the rejection order against the appeal of the 8 Litigants, is not in the agreement with the consideration of the Supreme Court of Administration.

The court, hereby shall give the order to accept the Appeal against the order, dated: 15 February2551 of the 8 Litigants to take under court’s consideration.

Mr. Worapoj Wisarupitch - Signed - (Responsible Judge)

Judge of the Supreme Court of Administration

Mr. Ampol Sighagowin - Signed -

Chief of Judges of the Supreme Court of Administration

Mr. Wichai Cheunchompunoot - Signed -

Judge of the Supreme Court of Administration

Mr. Paiboon Sianggong - Signed -

Judge of the Supreme Court of Administration

Mr. Udomsak Nitimontri

Judge of the Supreme Court of Administration

/ attachment – the record of the Supreme Court of Administration

In the case of the necessity of the absent of the signature of the judge.

- The Official Stamp of the Supreme Court of Administration -

- The Official Stamp of The Supreme Court of Administration -

- Dated: 23 May 2008 - 12

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Compare the Supreme Administrative Court decide given in Rayon on 1 of August 2007 with the most recent.

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

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

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

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

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

Mr. Vorapoj Visarutpich

Judge of Supreme Administrative Court

Mr. Amnaj Singgovin

Chief Judge of the Supreme Administrative Court

Mr. Vichai Chuenchompoonuj

Judge of Supreme Administrative Court

Mr. Paiboon Siengkong

Judge of Supreme Administrative Court

Mr. Udomsak Nimitmontri

Judge of Supreme Administrative Court”

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Below is the English translation of the Department of Public Works and Town & City Planning in Bangkok report to Rayong Administrative Court. It starts with a letter mark “most urgent” dated 18 December 2007.

“MOST URGENT

GARUDA EMBLEM

Ref. Mor Tor 0710/9634
Dept. of Public Works
And Town & City Planning
Rama 6 Road, Phayathai
Bangkok 10400
18 December 2007

Subject Execution of Court Order
To The Director General of Rayong Administrative Court
Reference Order of Rayong Administrative Court dated 19 September 2007

Enclosure 1. Execution Report to Court Order with support document
.Photos taken to support the report

With reference to the Order of Rayong Administrative Court issued to the Department of Public Works and Town & City Planning, as the authority who responsible for the issuance of the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 applying to some areas of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521 and the Ministerial Regulation No. 8 (B.E. 2519) amended by the Ministerial Regulation No. 9 (B.E. 2521) issued under the Building Construction Control Act B.E. 2479 executing the measurement of distance of Mean Sea Level under the provision of the above Decree to the building under conflict. The measured distance shall be reported to the Court supporting by the map, The Department of Public Works would advise that our officers have been assigned to execute the Court Order since 15 through 17 of November 2007. The measurement report with related photographs recorded during the execution are attached (Attachment 1 and 2 referred).

Yours respectfully

(Mr. Suraphol Phongthaipat)
Senior Engineer
In charge of the Director of the Dept. of Public Works

Building Control and Inspection Division "

The Report concerning the court order survey is below:

"Execution to Court Order Report

1. Original Story

The Rayong Administrative Court has its Order Black Case No. 54/2550 between Mr. Tenbuelt Aloysius Joannes Maria, No. 1 and 9 Associates totaling 10 Litigants and the Pattaya City Local Official, No. 1 Prosecuted Person and the No. 2 Prosecuted Person, Order dated 19 September 2007 referred.

The Department of Public Works being the authorized agency as the authority who responsible for the issuance of the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 applying to some areas of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521 and the Ministerial Regulation No. 8 (B.E. 2519) amended by the Ministerial Regulation No. 9 (B.E. 2521) issued under the Building Construction Control Act B.E. 2479 executing the measurement of distance of Mean Sea Level under the provision of the above Decree to the building under conflict. The measured distance shall be reported to the Court supporting by the map, after measurement is complete, the Department shall submit report with supporting map to the Court.

The Department of Public Works has assigned the following 8 staff members from the Building Inspection and Control Division accompanied by the Engineers of the Structural and System Engineering Division to accomplish the measurement

2. Staff involved

1. Mr. Viriya Visutrattanakul Legal Officer 7 Building Control and Inspection
2. Mr. Wattanachat Kajornsiri Civil Engineer 6 System Engineering Div.
3. Mr. Suthichai Boonlam Civil Engineer 4 System Engineering Div.
4. Mr. Vichet Chaithong-at Civil Engineer 2 System Engineering Div.
5. Mr. Soonthorn Vejpitak Civil Officer System Engineering Div.
6. Mr. Puchong Chansomboon Worker System Engineering Div.
7. Mr. Thongchai Yangsoong Worker System Engineering Div.
8. Mr. Thanivat Jangploy Driver Building Control and Inspection

Observers from the Litigants

1. Mr. Richard ............. Litigant
2. Mr. Adam ........ Litigant
3. Mr. Amnaj Thiengtham Authorized Lawyer
4. Mr. Rigis ........ Observer
5 मर्स Observer
6 Mrs Benyaporn Observer
7. Mr. Tanes Tumthong Lawyer‘s Representative
8. Mr. Chalermchat Vanitsirisit Lawyer’s Representative
9. Asst. Prof. Dr. Sanpetch Surnitipaisan Engineering Division, Chulalongkorn University

Observers from the Prosecuted Person 1 Pattaya City

1. Mr. Vidhaya Sirivorachai Chief Building Control Division
2. Mr. Samran Panpreecha Chief Building Control Section
3. Mr. Chavalit Jariyayanyong Traffic Researcher 7
4. Miss Benjawan Chinpat Legal Officer 4
5. Mr. Teeradej Srimuang Inspector Region 3

Observers from the Prosecuted Person 2 View Talay Jomthien (1999) Company

1. Mr. Somjet Hasan Project Engineer
2. Mr. Preecha Dechamuanvaivit Authorized Lawyer
3. Mr. Jeerasak Sangvanlek Observer
4. Mrs. Vilai Supcharoen Observer

Observer from the Meteorological Department
Mr. Jaruwat Srichana Meteorological Officer 6

3. Period of execution
The process had been operated from Thursday 15 November 2007 to Saturday 17 November 2007 for 3 days.

4. Methods
The measurement started from the brass peg No. Or Dor MSL C.B. 0029 which is 48.989 meter above mean sea level at the area of Chonburi Meteorological Department (Pattaya) on Phra Tamnak Hill targeted by survey telescope through the road towards the entrance of Royal Cliff Hotel to reach the Phra Tamnak 5 Road then leftward into Phra Tamnak 5 Road until the telescopic sight reach Jomthien Beach on the footpath level then further down to the construction area in dispute (before Dong Tan Police box). The distance was about 3.5 kilometer. Next step was by telescopic survey from the site of dispute backward to the brass peg MSL C.B. 0029 at the distance of again 3.5 kilometer to recheck the precision of measurement. In each measured point, temporary B.M. or B.M.T had been marked all the way as requested by the observer of the litigants. Two sets of temporary M.T. were marked again in front of the Jomthien Beach exactly in front of the construction site after precise leveling equivalent process was carried out. One set was marked at the MSL of 0.00 meter and the other was marked at MSL of 1.4477 meter. Measurement of distance from the two marked point to the conflict building was recorded in the presence of both parties. The parties were satisfied with the process therefore accepted the execution method carried out by the Department of Public Works (Attachment 1 refers).


5. Execution results
The reading from telescopic survey process to identify MSL appeared in the horizontal line herewith attached (Attachment 2 refers) and from the examination on MSL, referred to in the Book printed in the memorial of the Meteorological Department on its 80th Anniversary Chapter 5 page 88, published on 10th January 2007 claimed that the MSL value equals to 0.00 meter. The MSL of 1.4477 meter is the reference MSL at Ko Lak area of Prachuab Khirikhan Province. This is the reference MSL used by the Ordnance Survey Department throughout the country by means of leveling transfer (Attachment 3 refers). Therefore, the measurement of MSL at the shoreline must be measured from MSL 0.00 seaward to the distance of 100 meter is the area for construction restriction appeared in the map annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 applying to some areas of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua, and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521.

Where the measure from this point toward the land in front of the building construction for another 100 meter, the area shall be identified as the 200 meter restriction area for construction referred under Clause 3 of the Ministerial Regulation No. 8 (B.E. 2519) amended by the Ministerial Regulation No. 9 (2521) issued under the Building Construction Control Act B.E. 2479 governing restriction of construction of the building exceeding 14 meter from ground level. Measurement result is appeared in the attached map (Attachment 4 refers).

Report prepared by
Mr. Wattanachart Kajornsiri

Certified Correct Copy
Mrs. Suthida Chiengpongse
Administrative Case Officer “

हाउ can anyone read Issue 9 and make this report? Look at what Issue 9 said “No 3. To specify the area within the 200 meters measurement from the construction control line see the map.......................at the seashore in which the following constructions shall not be built:” “Building of 14 meters higher than road level”

There is no where in Issue 9 it said to measure seaward 100 meters from MSL! Then to measure 100 meters from MSL onto the land। After which you add the two measurements together for a 200 meters measurement from the seashore at MSL.

***************************************************

Witness Testimony Record

(Inquiring Stage)

Black Case No. 54/2551

GARUDA EMBLEM

The Administrative Court of Rayong

15 January 2008

Mr. Tenbuelt …………….. No. 1 and 9 Associates Litigants

Between

Pattaya City Local Official First Prosecuted Person

View Talay Jomthien Condominium Second Prosecuted Person

I have taken an oath to testify the following statement:

1. My name is Mr. Veera Visuthirattanakul
2. I was born on 28 June B.E. 2500 age 50
3. My profession is Legal Officer 7
4. I reside at The Office of Building Control and Inspection within the Department of Public Works and Town & City Planning, Rama 6 Road, Khwang Samsennai, Khet Phayathai, Bangkok
5. My relationship to the parties : Witness

My testimony shall be as follows:

The restricted zone of the building control area under the Royal Decree governing Building Construction Control B.E. 2521 shall be determined by the distance of 100 meter from Mean Sea Level outward to the sea.

In conducting the measuring, the witness did not measure from MSL towards the conflict building, but measured from the MSL to the 100 meter from the MSL

Mr. Veera Visuthirattanakul, Legal Officer 7 and Mr. Wattanchart Kajornsiri, the Civil Engineer 6 of the Department of Public Works are the witnesses of the case.

The Litigants apply the motion to clarify the point of law and fact dated 15 January 2008. The motion was accepted by the Court and copy of this motion was given to the two prosecuted persons today.

The testimony of the parties and witnesses have been recorded by the Court.

All parties and witnesses requested copies of the witness testimony records together with proceeding report of today. The Court approved such requests.

All witnesses received witness’ fee of Bht 300 each and transportation cost of Bht 1,000 each. Each witness received total 1,300 baht.

The hearing closed at 10.45 hours.

Signed ……………………………………………. Judge of the file

(Mr. Kritdanai Tromtat)

************************************************************

Motion

The Rayong Administrative Court

2 January 2008

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

Between

Pattaya City Local Official First Prosecuted Person

View Talay Jomthien Condominium Second Prosecuted Person

I, View Talay Jomthien Condominium (1999) Company Limited by Mr. Preecha Techamualvaivit, the authorized lawyer …………………………………………. of the Prosecuted Person 2 would file the motion as follows:

The inquiring process to all parties and witnesses – Mr. Veera Visuthirattanakul and Mr. Wattachart Kajornsiri have been completed since 15 Januray 2007. The Court also sent the copy of the MOST URGENT letter reference Mor Tor 0710/9634 issued by the Department of Public Works and City & Town Planning to the parties.

1. Report of execution to Court Order that accomplished by the officials of the Department of Public Works and Town & City Planning from the central office, after which the results are as follows:

(1) Measurement from shoreline at 0.00 MSL at the north side of the land of conflict towards the land mark foundation is 50.15 meter and if further measure into the land plot of another 49.85 meter the total distance will be 100 meter measured from the shoreline at MSL 0.00 at this side.

(2) Measurement from the shoreline at 0.00 MSL at the south side of the land of conflict towards the land mark foundation is 49.60 meter and if further measured into the land plot of another 50.40 meter the total distance will be 100 meter measured from the shoreline at MSL 0.00 at this side.

(3) The high-rise building line that will be constructed on the land of conflict towards the seaside by meter meters behind 100 meter line.

(Please see details in the enclosed map of measuring according to the Court Order)

As the measurement of 100 meter referred in No. 2 above, it is verified that the building in conflict is not built in the restricted area of 200 meter as prohibited by the Construction Permit No. 162/2550

BIG WIN! At the Administrative Supreme Court

Today we won our “Petition - The Appeal against the Rejection order of the last appeal” dated 27 March 2008. What happened was that the Rayong Court had blocked our appeal to the Administrative Supreme Court. Then we had to Petition the Admin Supreme Court to hear our “Appeal the order of lifting the injunction” dated 15 of February 2008. The Admin Supreme Court decided they wanted to hear our appeal because it relates to the Public Benefit and the rule of law. The supreme court doesn’t have to hear every case presented to them so their decision today to at least hear our case is a big win for us and a very positive step in our fight to have the building permit for the current View Talay 7 project declared illegal.

We believe this decision means the Admin Supreme Court disagreed with something in the 16 January 2008 Rayong court order that lifted the View Talay7 injunction and permitted construction to start on the contested 27 storey condominium project. The Admin Supreme Court has now ordered View Talay and Pattaya City Hall to give their answer to our appeal within 30 days.

If they chose View Talay 7 can continue building during the appeal procedure. Which we thing would be very risky because of the interest of the Admin Supreme Court in our appeal. Also the history of Thai courts in removing illegal portions of builds it risky to go on working.

Again, today is a very BIG WIN! Now we hope the Admin Supreme Court will rule on Issue 9 measurements, examine the expert witness report that we disagree with and hopefully reinstate the injunction until a final decision is made.

We believe that Issue 9 is a well written law that effects the beach environment by restricting various types of construction including preventing any building over 14 meters high within 200 meter from the seashore. While we believe we have a very strong legal case to stop the VT7 current construction and have the building permit declared illegal, we also understand that this is not simple legal case and it will take time before the final decision is made. We hope this will happen before the end of this year so we can all start the new year with great resolutions to make Jomtien a better place to live and invest.

This recent Administrative Supreme Court order was sent to a university in Bangkok for English translation. Then finished translation will also be posted on our website.

In summary, We have been waiting for over 18 months to get to this point in this very important legal case for all of Thailand and we thank everyone for your monetary and emotional support so far।
Richard

PS: From a blog; I like to share a posting which I think it explains all: “The Admin Supreme Court order spook once by saying “Therefore, if the Construction Permit No. 162/2007 dated 28 November 2006 granted by the Defendant No. 1 to the Defendant No. 2 should appear to be unlawful against the Ministerial Regulation thereto as being claimed by the ten plaintiffs,.”
I guess the expert witness, Rayong court, vt7 and city hall did not understand their previously Supreme Court Order so that why they accepted the appeal. Next time they hopefully make it loud and clear to all.”

VT7 answer to the Administrative Supreme Court Appeal

Appealing of Court Order or Method

Relief measure provision before Judgment

Black Case No. 54/2007

The Administrative Court of Rayong Province

Date 8 May 2008

Nai Tenbult Alewis Maria Plaintiff No. 1 and 10 Associates

Between

Pattaya City Hall Official Defendant No. 1

And View Talay Jomthien Condominium (1999) Co. Defendant No. 2

I, View Talay Jomthien Condominium (1999) Company Limited by its authorized representative, Nai Preecha Techamuanvaivit No. 2 ………………….. the defendant of the case, would submit my motion to appeal the Court Order to the Supreme Court of Administration to revoke or amend the order for the benefit of justice and to relief the damage for the defendants according to the following appealing cause:

1. The Court has order View Talay Jomthien Condominium (1999) Co. to be the joint defendant no. 2 as the Court deems that the defendant no. 2 has an interest in this case. During the hearing on 28 March 2008 at 10.00 a.m., the defendant no. 2 was also informed by the Court of the provisional relief measure in the same hearing.

During the examination of the parties in the stage of consideration the motion for provision protection before judgment of the 10 plaintiffs, it appeared that following facts have been disclosed:

Nai Amnaj Thiengtham was the authorized lawyer of the 10 plaintiff and testified that the defendant no. 2, had constructed the building at merely 100 meter from the MSL and not 200 meter according to the Ministerial Regulation No. 9 B.E. 2521 issued under the virtue of Building Construction Control Act B.E. 2479. The construction is now passing the foundation piling stage moving on to the construction of pillars. However, the sheet piling around the construction site has not been done after 17.00 hrs.

The measuring point used by the 10 plaintiffs to determine 200 meter distance according to the Ministerial Regulation 9 is from the MSL level meaning that the lowest tide of the sea. If the measurement starts from this point, the distance of the construction site of the defendant no. 2 would have been 200 meter according to the Ministerial Regulation being referred.

Mr. Pornsak Piyakamolrat, the Civil Engineer 7, who is the proxy of the defendant no. 1 testified that the Ministerial Regulation No. 8 (B.E 2519) and Ministerial Regulation No. 9 (B.E. 2521) issued under the Construction Control Act B.E. 2547 are both enforced and in effect. Ministerial Regulation No. 8, Clause 3, the 100 meter starts from the construction restriction area appeared in the map annexed to the Royal Decree B.E. 2499. Ministerial Regulation No. 9, later on, issued to extend the measuring distance to 200 meter from the construction restriction area appeared in the map annexed to the Royal Decree B.E. 2521 which outward into the seashore. The 100 meter distance according to the Ministerial Regulation No. 8, and the 200 meter prescribed under Ministerial Regulation No. 9 are, therefore, the same point.

According to the Royal Decree B.E. 2521 the construction restriction area shall be extended by 100 meter from the shoreline at MSL. The MSL is the natural highest sea tide. The building of defendant no. 2 is about 205 meter far from the construction restriction area according to the Ministerial Regulation No. 9.

Nai Preecha Techamuanvaivit, the lawyer of defendant no. 2 testified that both Ministerial Regulation No. 8 and Ministerial Regulation No. 9, issued under the Royal Decree B.E. 2479, should now become obsolete.

Having considered the file of the case, the Court gave his order to the defendant no. 2 to suspend the construction granted by Construction Permit No. 162/2007 dated 28 November 2006 until further judgment with effective from the date of Court order issued.

2. With all respect to the Court’s decision, but the defendant no. 2 believes in good faith that the considered measure to give such order to the defendant no. 2 is unreasonable and thus caused severe damage to the defendant no. 2, the Court is requested to revoke or amend such order. The defendant no. 2 also inspected the file of the case after such order had been issued and found that the clarification dated 4 April 2007 of the defendant no. 1 was recorded into case file on 9 April 2007 at 15.00 hours after which the Court ordered such clarification be received and recorded in the following day which is after the issuance of Court’s order.

The Construction Permit dated 28 November 2006 issued by Pattaya City (defendant no. 1) is therefore a legal document. The process of determination of 100 meter measurement from MSL ± 0.00 onto the land of conflict by the Officer before application of the Construction Permit on 24 April 2007 was also legally done.

In view of the foregoing supporting background, the case requires no further examination and is reasonable to all the defense issues. I request the Court to dismiss the case filed by those 10 plaintiffs. Should the Court deem that any further examination be required, I would request that the order for provisional protection before judgment be completely revoked to relief the damage of the defendant no.2 who ought not to deserve such damage.

Yours respectfully……………………………………

Mr. Preecha Techamuanvaivit

Authorized Person

Note: Mr. Preecha Techamuanvaivit is VT7 Lawyer!

The Supreme Court of Administration Appeal

Petition The Appeal against the Rejection order of the last appeal

Number of Black Case: 54 /๒๕ 50

Number of Red Case: /๒๕ .

Administrative Court of Rayong Province

27 March 2008

Mr. Tenblue A. J. Maria #1^st, with the associates of 10 Litigants

Between

Local Government Officer of Pattaya City Hall # 1

View Thalay Jomtien Condominium (1999) Co., Ltd. # 2 Plaint Receivers

I, hereby,: Miss Jeerisumai Na. Nongkai and / or Miss Patjama Plagaid and / or Mr. Teerapan Pankiri and / or Mr. Surachai Trong-ngam In the capacity of : The eight Litigants, Located at: 505/12 Moo - Street: Ramkhamhaeng Trok / Soi: Ramkhamhaeng 39 ( Thepleela 1) Sub- district: Wangtonglang District: Wangtonglang Province: Bangkok Zip Code: 10310 Telephone: 02-318-4292-3,

Would like to lodge this Appeal with the following matters:

1. In this case, on 20 February 2008, after the 9 Litigants lodged the appeal to the Administrative Court of Rayong Province, the 6^th Litigant withdrew out from being one of the Litigants and had no longer intention to proceed legal statements against the 2 Plaint Receivers, and the withdrawal of the 6^th Litigant had already been approved from the court.

On 20 February 2008, the Appeal of 9 Litigants was rejected by The Administrative Court of Rayong Province, The 8 Litigants received the order of rejection from The Administrative Court of Rayong Province on 29 February 2008

With respect to the order of The Administrative Court of Rayong Province, but the 8 Litigants can not be in agreement with the aforesaid order. Thereby, the 8 Litigants can see that there are some mistakes or errors in the interpretation of the point of law to use by the court to reject the Appeal which lodged against the order of lifting the Injunction, details which will be clarified in the following statements of this Appeal.
In this case, The 10 Litigants requested for the Injunction to seize the construction of the dispute building until the final decision is given. Because every step of progression of the construction will bring more damages to the 10 Litigants in the future, and it is will be too severe to be remedied.

Later on, the Administrative Court of Rayong Province ordered the 2^nd Plaint Receiver to temporally stop the construction which had been permitted under the Construction License No: 162 / 2550 on 9^th April 2007, Issued on: 28^th November 2006 until the final decision or other order is given, since the order have been received. The Administrative Court of Rayong considered and wrote: “ To be able to judge this case, the court needs to inspect carefully and find out the starting point of measurement which was stated in the Ministerial Regulations of Issue 9. Also to find out if the distance of the dispute building from that point is correct by the law. The inspection will take some time. If the building is still constructed continuously, and if the court would finally revoke the construction license as requested by the 10 Litigants, then it might bring severe damages to the 10 Litigants. This matter gives enough reason for the court to order the Injunction as requested by the 10 Litigants.” The Court, therefore, ordered to seize the construction which had been permitted under the Construction License No: 162 / 2550 on 9^th April 2007, Issued on: 28^th November 2006 until the final decision or other order is given, since the order have been received.

The 2^nd Plaint Receiver, then lodged the Appeal against the order of placing the Injunction to minimize injurious consequences of The Administrative Court of Rayong Province.

The Supreme Court of Administration, then gave an order, Issued on 11^th July 2007, stated that:…… “ If the building is still constructed continuously building, and if the court would finally revoke the construction license as requested by the 10 Litigants, then it might bring severe damages to the 10 Litigants. If the license is revoked in the future, and the building must be demolished, as requested by the 10 Litigants, however, the demolition would take some time to be completed. It will still damage the 10 Litigants continuously during the step of demolition regardless, and it still can not solve what had been damaged the 10 Litigants This matter gives enough reason for the court to order the Injunction to minimize the injurious consequences before judgment, by ordering the 2^nd Plaint Receiver to seize the construction under the Construction License No: 162 / 2550 on 9^th April 2007, Issued on: 28^th November 2006 until the final decision or other order is given.”

However, the Clause 3(8) of the Ministerial Regulations of Issue 8 ( B.E. 2519) which was promulgated to be in accordance with the Construction Control Acts of B.E. 2479, which was amended by the Ministerial Regulations of Issue 9 (B.E. 2521), which was promulgated to be in accordance with the Construction Control Acts of B.E. 2479, stipulates the area of 200 meters, which measuring from the Construction Control Line, which shown on the annexed map of the Royal Decree of the promulgation of the Construction Control Acts of B.E. 2479. The B.E. 2521, which taking control the areas along the sea side over the regions of Banglamung, Nongplalai, Nagluea and Nongprue Sub-districts, Banglamung District, Chonburi Province. These areas are the prohibition areas for the buildings with the height over 14 meters from the road surface. Therefore, if the construction license No: 162 / 2550, which Issued on 28^th November 2006, and which issued by the 1^st Plaint Receiver, to the 2^nd Plaint Receiver would be found to be infringement to the law as stated by the 10 Litigants, is illegal, then the Administrative court of Rayong Province can cancel the license, only on the part of the construction which is illegal. Which means the part that had been given to the 2^nd Plaint Receiver to build the building parts over 14meters from the road surface only. When the order of Injunction to minimize the injurious consequences was given, the building of the 2^nd Plaint Receiver was constructed only on the ground level and still has not been built over 14 meters. Therefore, the order to place the Injunction then, happened to be more than the necessity to be done for that level of progression of the construction.

Later on, the Administrative Court of Rayong Province had the second order to amend the former order by allowing the 2^nd. Plaint Receiver to build the construction under the Construction License No: 162 / 2550, Issued on: 28^th November 2006, up to 14 meters from the road surface only, until another order or the judgment is given

After the Supreme Court of Administration ordered the 2^nd Plaint Receiver to stop the construction over 14 meters of the building with the Construction License No: 162 / 2550, Issued on: 28^th November 2006, until another order or the judgment is given, as mentioned above, on 2 January 2008, the 2^nd Plaint Receiver requested the Administrative Court of Rayong Province to life the Injunction or the procedure to minimize injurious consequences.

On 16^th January 2008, the Administrative Court of Rayong Province ordered to lift the Injunction as requested by the 2^nd plaint Receiver by stated that:…….. “the facts which have been used by the court to consider to give the order of Injunction, now have changed, and the reasons to continue placing the Injunction becomes insufficiency,

The court then, ordered to lift the Injunction which was the order of stopping the 2^nd Plaint Receiver from building the construction higher than 14 meters from the road surface temporally, until the final decision or the other order is given”.

On 15^th February 2008, the 9 Litigants lodged the Appeal against the order of cancellation of the Injunction / or the procedure to minimize injurious consequences.

Then on 20 February 2008, The Administrative Court of Rayong Province refused to accept the Appeal which was lodged by the 9 Litigants, with the reason that: …… “ Clause 76, 2^nd and 3^rd phrases of The Regulations of the Grand Meeting of the Supreme Court of Administration, governing the procedures of trying the case of B.E. 2543, stipulated the order of refusing / or lifting the Injunction which requested to minimize the injurious consequences before final decision is made, by the litigant / or the other party to be the final order, and the interested person has the right to lodge the Appeal against the order of placing the Injunction within 30 days, from the day of receiving the court order. From the aforesaid regulations, it shows that, there are only 2 circumstances which connect the procedure of trying the case of the Administrative Court to the procedures of Injunction to minimize injurious consequences. One is the circumstance of which the court gives the order to reject or lift or cancel the request of the litigant, this type of order is considered to be the final order. The other circumstance is in the case of which the court gives the order to place the injunction temporally, the interested person has the right to lodge the Appeal to the Supreme Court of Administration. In this case, the 2^nd Plaint Receiver used the right to lodge the Appeal to the Supreme Court against the order of placing the Injunction which had been ordered to grant the request of the 9 Litigants, and the Supreme Court already gave the order to replace the former order which was given by the Administrative Court of Rayong, when the reasons to continue placing the injunction became insufficiency. The court then, cancelled the procedure to minimize injurious consequences. This circumstance, however, gave the same effect as the rejection / or cancellation of the request which was requested by the 9 Litigants, therefore, this order is the final order as stated in Clause 76, 2^nd Phrase of the aforesaid Regulations. The 9 Litigants can no longer lodge the Appeal. This Appeal of the 9 Litigants is forbidden to be proceeded by the law, and should make the motion for the committee to consider not to accept this Appeal to be in accordance with the 2^nd Phrase of the Regulations of the Supreme Court’s Grand meeting, governing the procedures of trying the case of B.E. 2543.”

2. The 8 Litigants are in disagreement with the order of rejection of the Appeal which had been given by the Administrative Court of Rayong as mentioned, therefore, the 8 Litigants would like to lodge the Appeal against the aforesaid rejection order, given by the Administrative Court of Rayong Province, which rejected to accept the Appeal against the cancellation of the Injunction, by revealing the reasons, facts and points of law as follow;

As when the Administrative Court of Rayong Province gave the order to place the Injunction which was requested by the Litigants, the 2^nd Plaint Receiver used the right to lodge the Appeal, and then the Supreme Court of Administration gave the order to replace the order from the Administrative Court of Rayong. Later on, the Administrative Court of Rayong granted the request of the 2^nd Plaint Receiver after trying the case, by giving the order to lift the injunction as mentioned above, by depending on Clause 77 of the Regulations of the Supreme Court’s Grand Meeting, governing the procedures of trying Administration case of B.E. 2543, together with the Article 262, 1^st Phrase of the Civil Code. The aforesaid order of lifting the Injunction of the Administrative Court of Rayong Province, however is just the other step of trying the case and ordering, after the orders had been given from the Administrative Court of Rayong Province and The Supreme Court of Administration, and it is not the order of rejection or cancellation of the request which was filed by the 8 Litigants, which was stipulated to be the Supreme or Final Order, and to be forbidden to lodge the Appeal after receiving this order, as stated in Clause 76 of the same Regulations. Even though the effect of lifting the Injunction which was given by the Administrative Court of Rayong Province would be as same as the rejection or cancellation of the request which was filed by the Litigants, however, the aforesaid order from the Administrative Court of Rayong Province, had specific procedures of trying the case and giving out the order, which were separated from the former order, which was the order of placing the Injunction before receiving the final judicial decision. And it happened to be the new order which giving the negative effect to the benefit and rights of the other party, which used to be protected by the former order. Therefore, to interpret the law in order to enforce the order of lifting the Injunction, which was given by the Administrative Court of Rayong Province, to be the supreme or final order as same as the Order of Rejection or Cancellation of the Request which was filed by the 8 Litigants, / and to be forbidden from lodging another Appeal as stated in Clause 76 of the aforesaid Regulations, is not the right way to be done.

As written in Clause 100, 1^st Phrase of the Regulations of the Supreme Court’s Grand Meeting, governing the procedures of trying the Administrative cases of B.E. 2543, stipulated that, the judicial decision or the order of the First Administrative Court, which was not stipulated to be final by the law or this Regulations, the Appeal can be lodged to the Supreme Court of Administration. Thereby, the order of lifting the Injunction which was given by the Administrative Court, was not stipulated to be the final order in accordance with the law or the aforesaid Regulations, therefore, the aforesaid order is considered to be the other type of order which is opened for the Appeal, to be accordance with Clause 100, 2^nd Phrase, which stated that the interested person has the right to lodge the Appeal against the aforesaid order within 30 days, from the day of receiving the order from the First Administrative Court. In Clause 49 /1 of the same Regulations, the 8 Litigants have their rights to lodge the Appeal against the aforesaid Order to the Supreme Court of Administration within 30 days from the day of receiving the order of the Administrative Court of Rayong Province. The right to appeal against the order of lifting the Injunction, as revealed to the Supreme Court of Administration in this appeal as above, is in agreement with the point of law of the Civil Code, which giving the right to appeal against the order of amendment / or cancellation of the Injunction procedure which was placed before the final decision is given, in accordance with the Article 262 of the Civil Code, which was the order that related to the request of protection of the benefit of both parties during the trails, which is open for both parties to appeal within 1 month , and in the Article 228 ( 2 ) of the Civil Code which stipulates in the same way.

The 8 Litigants can not be in agreement with the Order of Rejection of the Appeal, by giving the decision that the order of lifting the Injunction would give the same effect to the Rejection or Cancellation of the request which was filed by the 8 Litigants, because that order is the final order, in accordance with Clause 76, 2^nd Phrase of the Regulations of The Supreme Court’s Grand Meeting, governing the procedures of trying Administrative Cases of B.E. 2543. The Appeal of the 8 Litigants is prohibited by the law, as the reasons respectfully clarified to the Supreme Court of Administration as above.

3. The 8 Litigants would like to add on the clarification of the facts, points of law

which relate to the Public Benefits, of which, should be brought up to be considered, to the Supreme Court of Administration with respect. The aforesaid order from the Administrative Court of Rayong Province which was the order of Lifting the Injunction that had been placed in order to minimize the injurious consequences before the final decision is given, is considered to be the order that effects the rights, freedom and properties of the majority residences of Jomthien Complex Condotel and the

surrounding areas in the negative way. The Supreme Court of Administration was aware of the importance of placing the Injunction to minimize injurious consequences, as requested by the 10 litigants, therefore, the Supreme Court ordered the 2^nd Plaint Receiver to hold the construction of the part of the building which is higher than 14 meters from the road surface. If the building is built up to 27 floors or 81 meters high, it will block the sunlight, the sea view and the wind from the ocean to the building of the 8 Litigants, also it will impact the environmental conditions, health conditions and quality of lives on other dimensions of the 8 Litigants and many people who live in this building. Whatever the result of this case will be, however, the damages will finally be too much to be remedied for the 8 Litigants and other people.

The 8 Litigants are also aware of the errors in many matters of facts and points of law of the interpretation of the Construction Control Acts, by the Administrative Court of Rayong Province, to enforce the law in the order given, by interpreting that, …. The area which prohibit the buildings with the height over 14 meters is fixing at the distance of 200 meters from the Construction Control Line, which is the distance of 100 meters out into the sea from the Mean Sea Level at the coast line…, was the interpretation that make the Construction Control Area of The Ministerial Regulations of Issue 9 (B.E. 2521) becomes 11 meters narrower than the Issue 8 (B.E. 2519). This result is in contrary to the intentions and purposes of the law which was issued to protect the environmental conditions along the sea sides. This point was revealed by the 8 Litigants in the Appeal of 15^th February 2008.

With the reasons, facts and points of law that have been mentioned above, the fact shows that in Clause 100, 1^st Phrase of the Regulations of the Supreme Court’s Grand Meeting, governing the procedures of trying the Administrative Cases of B.E. 2543, stipulated that, the judicial decision or the order of the First Administrative Court, which was not stipulated to be final by the law or by this Regulations, the Appeal can be lodged to the Supreme Court of Administration. Thereby, the order of lifting the Injunction which was given by the First Administrative Court, was not stipulated to be the final order in accordance with the law or the aforesaid Regulations, which ordered to lift the Injunction, therefore, the 9 Litigants have the right to lodge the Appeal against the order from the Administrative Court of Rayong Province, to the Supreme Court of Administration as stipulated in Clause 49 / 1 of the same Regulations. Also the order of lifting the Injunction is the type of order that creates the negative impacts to the rights, freedom, environmental conditions and properties of the 8 Litigants and a lot of people who live around the dispute building. The Appeal of the 8 Litigants is also consist of the suitable matters which needed to be considered to set The Standard form the Supreme Court of Administration. The 8 Litigants request with respect, for the Supreme Court of Administration to replace the order of rejection of the Administrative Court of Rayong Province by accepting the Appeal which was lodged by the 8 Litigants, therefore, the justice will be served.

Respectfully Yours,

Signature: ……………………. The Approved Persons of the 8 Litigants

Miss Jeerisumai Na. Nongkai, Miss Patjama Plagaid, Mr. Teerapan Pankiri, Mr. Surachai Trong-ngam

Appeal to Supreme Court of Administration

Our Appeal to Supreme Court of Administration is below:

“Appeal the order of lifting the injunction
or the protection procedure

Number of Black Type Case: 54 /25 50?
to minimize injurious consequences Number of Red Type Case: /25___

Supreme Court of Administration

Date 15 February 16, 2008.

Mr. Tenblue A. J. Maria #1st, with the associates of 9 Plaintiff

Between

The Pattaya City Hall # 1 and the associates all are 2 persons The Plaint receiver

I, hereby, The Plaintiff: Mr. Tenblue A. J. Maria # 1st with the associates of 9, would like to appeal: the order of the Administrative Court of Rayong province, given on 16 January 2008, with the following statements and matters ( the clarifications of objections of the decision or the order of the Administrative court )
1. This case, On 16 January 2008 The Administrative court of Rayong province ordered to lift the injunction / or cancel the procedure of protection to temporally minimize the injurious consequences, which was the order for the 2nd Plaint Receiver to stop building the construction higher than 14 meters from road surfaces, until final judgment, as in the petition of the 2nd Plaint receiver on 2 January 2008. The Administrative court of Rayong province made its decision by referring to “ Section 77 of the Minutes of the Grand Meeting of Administration officers of Supreme Administrative Court, governing the Administrative Procedures of B.E. 2543, stipulated to bring statements which are written as in TYPE 1 - DIVISION 4 under the Civil Procedure Code, to enforce with the standard for consideration the request / the conditions of court’s order /and results of the order which enforcing certain protection procedures in order to minimize the injurious consequences before judgment / or the protection procedure for the benefit of petitioners while the case is on trail / or for enforcing to follow the decision, by adapting to the status as possible as it is available and capable in the case, without violating this regulations / and general laws relating to Administrative consideration procedures / and Article 262, Phrase 1 of Civil Procedure Code, which stipulated that “If the fact or circumstance which used by the court as the guidance for considering on granting the requested on the protection procedure has changed, when the court considers that it’s suitable / or when the request was submitted by the Defendants or Plaint receivers or the outsiders as clarified in Article 261, to the court where in the course of trial, the court can reconsider / or cancel the former procedure or order. In this case, the court order to set up the protection procedure to minimize the injurious consequences before judgment, granted the request of 10 Plaintiffs, with prior reason which stated that “In For court’s consideration, it is necessary for the court to make the inspections carefully in order to determine the starting point of the measurement in accordance with Ministerial Regulations of Issue 9 ( B.E. 2521 ) / AND to see if the distance from the dispute building to the spot as mentioned is in violation to the distance stipulated by law. But by the measurement conducted by the Department of Civil Engineering and City Planning which ordered by court, the facts appeared in the report, and the testimony of witness that, the dispute building is more than 100 meters from the Mean Sea Level ( MSL ), which the court is of the opinion that, if the measurement was made from the building control area shown in the map annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 – Controlling over the region of Banglamung / Naklua / Nong Plalai / Nongprue Sub-districts of Chonburi province, which by another 100 meters further away in the sea from the MSL, as shown in the map annexed to the aforesaid Royal Decree and as testified by the witness, the dispute building would also be over 200 meter from the building control area as referred by the aforesaid Ministerial Regulations. Therefore, the fact of which used by the court to order the injunction / or the protection procedure to minimize injurious consequences before judgment as requested by 10 Litigants of this case has changed / and there is not enough suitable reasons to support the aforesaid protection procedure to be continued placing.
The court ordered to lift the injunction / or the protection procedure to minimize injurious consequences before judgment, which originally was the order to stop the 2nd Plaint Receiver from building the construction higher than 14 meters from road surfaces, until the final decision / or the different order is made and given.”
With respect to the order of Administrative court of Rayong province, 9 Litigants, however are in disagreement with the order which given by the court, because in the state of enquiries/ interpretations / enforcing the law for controlling constructions, in accordance with the law controlling the aforesaid order given by court, however, there still are mistakes and errors in many points of facts and matters of laws, which will be offer to the consideration of the Supreme Court of Administration in this appeal.
9 Litigants understand that, the order given on 16 January 2008, by the Administrative Court of Rayong province, to lift the injunction or the protection procedure to minimize injurious consequences before judgment IS NOT THE REJECTION or DISMISSAL of the petition of 9 Litigants which requested the court to order for the injunction or the protection procedure to minimize injurious consequences before judgment which is stipulated to be the supreme order, and this order is not opened for further appeal to be submitted in court, referring to Section 76 of Minutes of the Grand Meeting of Administration officers of Supreme Administrative Court, governing The Administrative Procedures of B.E. 2543. But the aforesaid order is considered as another type of order which is open for an appeal while the case is on trial, referring to Section 100, Phrase 2 of the aforesaid regulations, which 9 Litigants, in the capacities of interested person, hold the right to appeal the aforesaid order within the limitation of 30 days, from the day of receiving the order from Administrative Court of Rayong province, by Section 49 / 1 of the same regulations.
2. 9 Litigants need to appeal the order of lifting the injunction / or the protection procedure to minimize injurious consequences before judgment given on 16 January 2008 to the Supreme Court of Administration, with reasons, facts and matters of laws as follow;
By the order of Administrative Court of Rayong province, to lift the injunction / or the protection procedure to minimize injurious consequences before judgment given on 16 January 2008, by using the facts from the report of the Department of Civil Engineering and City Planning / and the testimony of the witness, summarized that The Construction Control Line shown in the annexed map of the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 – Controlling over the region of Banglamung / Naklua / Nong Plalai / Nongprue Sub-districts of Chonburi province, The B.E. 2521 is the distance of 100 meters further into the sea from the MSL, and when the measurement conducted as ordered from court from the MSL onto the land for another 100 meters, the fact of the result of measurement appealed in the report of the Department of Civil Engineering and City Planning / and the testimony of the witness, stated that, the dispute building is more than 100 meters from the MSL, and the court considered that, if the measurement is made from the Construction Control Area, as shown in the map annexed to the aforesaid Royal Decree, which is at the furthest end of 100 meters in the sea, from the shoreline at MSL as shown in the annexed map and as testified by the witness, the dispute building would also be over 200 meter from the building control area as referred by the Section 3 of the Ministerial Regulations of Issue 9 ( B.E. 2521 ), which buildings over 14 meters from road surfaces are also not permitted to be constructed as mentioned. Therefore, the facts of which used by court to order the injunction / or the protection procedure to temporally minimize injurious consequences before judgment as requested by 10 Litigants of this case have changed / and there were not enough suitable reasons to support the aforesaid protection procedure to be further on. The Administrative Court of Rayong province, however, had finally ordered to revoke / lift the injunction or / the protection procedure to temporally minimize injurious consequences before judgment as mentioned.
9 Litigants need to point out to The Supreme Court of Administration that, the aforesaid decision given by the Administrative Court of Rayong province, based on the enquiry of facts/ interpretation and enforcing law in order to control the involved constructions, in the way to be contrary to the intentions / or purposes of law………………., and it has impact /negative effects to the benefit of 10 Litigants and public in order to maintain the qualities of environment, as the following clarifications;
2.1 To interpret for enforcing the law for controlling constructions, in accordance with The Ministerial Regulations of Issue 9 ( B.E. 2521), must considerer the intentions and purposes of laws which are involved with one another. The law using to control over the regions of Banglamung / Naklua / Nong Plalai / Nongprue Sub-districts of Chonburi province, had been stipulated in order to mark the construction control area for the first time, which was The Ministerial Regulations of Issue 8 ( B.E. 2519 ) by using the reasons /or another words / it’s the intention of promulgating the aforesaid regulations, it states that, The intention of promulgating the aforesaid Regulations was “ as the Royal Decree promulgating The Construction Control Acts of B.E. 2479, controlling over some areas of Banglamung / Naklua and Nongprue Sub-district of Chonburi province B.E. 2499, and the area as mentioned are public attractions for taking an airing, it’s suitable to prohibit certain types of constructions which may cause troubles / disturbance and create waste / and ruin the environment, therefore, this Regulations was in need to be issued.
Later on 31 December 2521, the Ministerial Regulations of Issue 9( B.E. 2521 ) had been promulgated, with reasons that “Because there was the adjustment of the construction control area in the regions of Banglamung / Naklua / and Nongprue Sub-districts of Chonburi province, by expanding the area, as shown in the annexed map of the Royal Decree Promulgating The Construction Control Acts of B.E. 2479, controlling over the areas of Banglamung / Naklua and Nongprue Sub-district of Chonburi province B.E. 2521, it is suitable to make an amendment to the Regulations of Issue 8 ( B.E. 2519 ), prescribed in accordance with The Construction Control Acts of B.E. 2479, governing the certain types of buildings which are prohibited to be constructed within the construction control area, referring to the aforesaid Royal Decree, in order to be more suitable, therefore, this Regulations was in needed to be issued.
The reason for promulgating the Royal Decree, stipulated to use the Construction Control Acts of B.E. 2479, to control over the regions of Banglamung / Naklua / Nong Plalai / Nongprue Sub-districts of Chonburi province, had been “in according to the expansion of constructions in the areas of Banglamung / Naklua / Nong Plalai / Nongprue Sub-districts of Chonburi province, and some constructions were not controlled by the Construction Control Acts, because the construction control area, as shown in the annexed map of the Royal Decree promulgating the Construction Control Acts of B.E. 2479 to control over the regions of Banglamung / Naklua / and Nongprue Sub-districts of Chonburi province B.E. 2499, did not cover the aforesaid areas of construction, it’s needed to make the amendment to the aforesaid Royal Decree, by expanding the area, especially the areas by the beaches, in order for the local officers to be able to proceed by the law, therefore, this Royal Decree is in need to be stipulated.”

The way of drafting the Ministerial Regulations of Issue 8 ( B.E. 2519 ), the drafter must analyze the reasons of law, this is counted to be the priority in enforcing the law, because it is the searching procedure to find the reason of the law, which stipulated to find the fact why the Ministerial Regulation of Issue 8 ( B.E. 2519 ) was issued in such a way and what reason it was for, whether it was appropriate and how appropriate it was. For the law to be enforced, following the intention of law that empowered to be used, therefore, when there was the meeting to draft the Ministerial Regulation of Issue 8( B.E. 2519 ), from the office of Royal Decree stated that “ The area of 100 meters measured from the construction control line according to the annexed map, from the sea onto the land shall not be permitted to construct the following types of buildings”
………(8) Buildings with the height of 14 meters
Later on, there was the further amendment to cut out the phrase “onto the land” since the wording was clearly understood, then the following phrase was used instead “to fix the 100 meters measured from the construction control line according to the annexed map at the sea shore that building of the following types are not permitted to be constructed”. The meeting approved the aforesaid draft of the Ministerial Regulation, because of the reason to protect the area by the shore, by controlling the constructions which may impact the seas and beaches: details as shown in the attachment of the appeal No:1 – The Meeting of Drafting of the Ministerial Regulation of Issue8 ( B.E. 2519 )Therefore, the intention or purpose of The Ministerial Regulation of Issue 8 is “to fix the 100 meters measured from the construction control line according to the annexed map at the sea shore onto the land that the type of building of No. 3 ( 1 ) – ( 8 ) are not permitted to be con-structed, in accordance with the Ministerial Regulation of Issue 8 ( B.E. 2519 ), which stated that….Because the aforesaid areas are public attractions for taking an airing, it’s suitable to prohibit certain types of constructions which may cause troubles and disturbance and create waste and may destroy the environment.
Leter on, there was the adjustment of the construction control area in the regions of Banglamung / Naklua / and Nongprue Sub-districts of Chonburi province, by expanding the area, as shown in the annexed map of the Royal Decree Promulgating The Construction Control Acts of B.E. 2479, controlling over the areas of Banglamung / Naklua and Nongprue Sub-district of Chonburi province B.E. 2521, it is suitable to make an amendment to the Regulations of Issue 8 ( B.E. 2519 ), to be more suitable, therefore, The Ministerial Regulation of Issue 9 ( B.E. 2521 ) was promulgated, shown in the remark section, on the attached map of Ministerial Regulation of Issue 9, and therefore, the provision of both Ministerial Regulations are in accordance with one another, / or the procedures are connect with one another, so they were always mentioned of / or used as references in parts of their regulations.
The intention or purpose to promulgate the Ministerial Regulation of Issue 9 (B.E. 2521)
is to expand the control area for constructions in Banglamung / Naklua and Nongprue Sub-district, Bang-lamung District of Chonburi Province, which are the public attractions for taking an airing or holiday, by in the Regulations of Issue 9 fixes the 200 meters measured from the construction control line according to the annexed map of the Royal Degree of B.E. 2521, at the sea shore that types of buildings of NO. 3 ( 1 ) – ( 8 ) shall not be permitted to be constructed. When it is needed to ?? interpreted to be in accord with the intention or purpose of the Regulations of Issue 8 ( B.E. 2519 ), the expansion made from 100 to 200 meters must be expanded the distance at the sea shore onto the land, in order to protect those areas from the prohibited constructions, in accordance with the provisions of Issue 8 and 9, to be more suitable and appropriate. Plus the reason of promulgating of the Regulations of Issue 8 ( B.E. 2519 ) is Because some areas of Banglamung / Naklua and Nongprue sub-district of Banglamung District of Chonburi province are public attractions for taking an airing or holiday, it’s suitable to prohibit certain types of constructions which may cause troubles and disturbance and create waste and may destroy the environment, therefore, this regulations was needed to be issued, by No. 3 stated to fix 100 meters from the
construction control line, shown on the annexed map of the Royal Decree Promulgating The Construction Control Acts of B.E. 2479, control over the regions of Banglamung / Naklua and Nongprue Sub-district of Banglamung district of Chonburi province of B.E. 2499, at the sea shore, to be the prohibited areas for the following types of constructions:
1. Oil, Gasoline storage and distribution area
2. Entertainment Halls
3. Shop houses
4. Shop buildings
5. Fresh food market
6.Cars or motorcycles garage of fixing or air compressing spray
7. Products storage
8. Tall building with the height over 14 metersAccording to the Regulations of Issue 9 ( B.E. 2521 ) on section 3. (1 ) – ( 8 ) stipulated To prohibid all 8 types of constructions as same as the Regulation of Issue 8 ( B.E. 2519 ) with the reason of The promulgation of the Regulation of Issue 9 ( B.E. 2521 ) was “ because there was the adjustment on the construction control area in Banglamung/ Naklua and Nongprue Sub-district by expand out of the area / making an expansion to be wider….”
The word “ wide ” means by the meaning marked in the dictionary of B.E. 2542 that to
expand / spread / stretch i.e. the wide area The word “ out ” means movement that move to outside, starting or happening i.e. the transportations departure.
The word “ off / go ” means movement that move from the place, use this word in opposite with “ in / come ”
9 Litigants need to explain to the court the meaning of the words “wide”, “out” and “off” which stipulated in the remark section of the Regulation of Issue 9 ( B.E. 2521 ) to be the words to fix the true meanings of hose words, by covering the meaning of expanding the area or space out to expand the construction control area. If these words are used to interpret the regulations of Issue 9 ( B.E. 2521 ),
therefore the meaning will be the expansion of the construction control area, refer to section 3. ( 1 ) – ( 8 ), from 100 meters to be 200 meters, so the expansion must have been made from the sea shore onto the land , details shown in the attachment No.2: The copy of the meaning of these words written in the dictionary of B.E. 2542.
And with the consideration of the types of building which are under control of the section 3 . ( 1 ) – ( 8 ) of the Regulations of Issue 8 and 9 as mentioned, it shown that all types of buildings are the types of building that needed to be built on land , certainly NOT in the sea, therefore, there is no reason to interpret the phrase “expand wider ”, shown in the remark section of the Regulations of Issue 9 ( B.E. 2521 ) that to expand the construction control area in to the sea. Because it will make the construction control area become the non-operative, refer to the intention or purpose of the aforesaid Regulations. So the interpretation of the Regulations of Issue 9 ( B.E. 2521 ), section 3, which stipulated to fix 200 meters…….. would be the expansion of the construction control area, section 3. ( 1 ) – ( 8 ) from the sea shore on to the land for 100 meters wider to be 200 meters. The distance of 100 meters which expanding the construction control area in to the sea has not been stipulated in any Regulations, in order to control the constructions which is needed to be built specially in the sea, which the Ministry of the Interior will further stipulate this
matters in order to control certain types of constructions within 100 meters out in to the sea in the future, to be suitable and appropriate to the future situation.
Therefore, the decision agreed with the Department of Civil Engineering and City Planning of the Administrative Court of Rayong province, which interpreted that “ The Construction Control Area at the sea shore” is the line measured from the sea shore at the MSL out in to the sea for 100 meters, therefore, the Regulations of Issue 9 ( B.E. 2521 ), stipulated following The Construction Control Acts of B.E. 2479, section 3, fixes the area within 200 meters, by measuring from the construction control area, shown on the annexed map of the Royal Decree of B.E. 2479 at the sea shore, to be the prohibit area for the building with the height over 14 meters, therefore, the measurement is made from the aforesaid Construction Control Line at the sea shore ONTO the land for 200 meters, will be the MSL + 0.00 and carry on ONTO the land for another 100 meters.
Therefore, it was contrary to the intentions and purposes of laws effected by the result from the inquiry for hearing of facts / interpretation and enforcing law which verify and protect, for controlling involving constructions, and the law is unable to be used in reality for the protection of public benefit, as pointing out to the consideration of the Supreme Court of Administration as above.
2.2 Plus the interpretation of The Construction Control Area of the Ministerial Regulations of Issue 9 ( B.E. 2521 ) which taken by the court from the report of the Department of Civil Engineering and City Planning, including the testimony of the witness, which said that the dispute building is more than 100 meters from the MSL, and which was the reason for the cancellation of the injunction / or the order to have the protection procedure to minimize injurious consequences before judgment, which was the order for the 2nd Plaint Receiver to stop its construction of the building over 14 meters high until the final decision is made, made the Construction Control Area of Regulations of Issue 9 ( B.E. 2521 ) narrower for 11 meters than the Regulations of Issue 8 ( B.E. 2519 ), and it allowed the constructions over 14 meters high to be built closer to the sea, against the intention of the law, as the following details:
9 Litigants would like to explain to the court that, “ the point to start measuring,
referring to the Ministerial of Issue 8 ( B.E. 2519 ), stated in accordance with the The Construction Control Acts of B.E. 2479, Section 3., which stated that “ To fix the area of 100 meters measured from the construction control line according to the annexed map of the Construction Control Acts of B.E. 2479, to control the areas of Banglamung / Naklua and Nongprue Sub-districts of Banglamung District of Chonburi Province of B.E. 2499, at the sea shore, to be the prohibited areas for the following descriptions of constructions……(8) Buildings with the height of 14 meters ”
And by the Regulations of Issue 9 ( B.E. 2521 ), stated in accordance with the Construction Control Acts of B.E. 2479, Section 3., which stated that “ To fix the area of 200 meters measured from the construction control line according to the annexed map of the Construction Control Acts of B.E. 2479, to control the areas of Banglamung / NONG PLALAI / Naklua and Nongprue Sub-districts of Banglamung District of Chonburi Province of B.E. 2499, at the sea shore, to be the prohibited areas for the following descriptions of constructions……(8) Buildings with the height of 14 meters ”
The measurement points stipulated in both Regulations were not the same point, by the letter which made by MR. SUPOHN PONGTHATPAT, who was sent on behalf of the Director – General of the Department of Civil Engineer and City Planning, submitted to the Administrative Court of Rayong Province, written that “ 2. The distance of 100 meters, by Section 3 of the Ministerial Regulations of Issue 8 ( B.E. 2519 ), stipulated in accordance with the Construction Control Acts of B.E. 2479, and the distance of 200 meters by Section 3 of the Ministerial Regulations of Issue 9 ( B.E. 2521 ), stipulated in accordance with the Construction Control Acts of B.E. 2479 ARE NOT THE SAME LINE, because the Ministerial Regulations of Issue 8 ( B.E. 2519 ) did not stipulate to measure at the MSL, but the Ministerial Regulations of Issue 9 ( B.E. 2521 ) stipulated to measure at the MSL, details as shown in the attachment NO. 3: The letter which was “Most Urgent” Report Ref. Mor Tor 0710/9634 dated 19 December 2007 of the Department of Civil Engineer and City Planning, Subject: Requesting for the testimony
The aforesaid explanation of the Department of Civil Engineer and City Planning showed that The Regulations of Issue 8 ( B.E. 2519 ), meant to measure from the coast line, means at high tide, but Issue 9 ( B.E. 2521 ) is to measure at the MSL. This means the measurement points of both Regulations are not the same point.
The Regulations of Issue 8 ( B.E. 2519 ), meant to measure from the coast line as mentioned to the Administrative Court as Rayong Province, which the 1st Plaint Receiver had inspected the dispute building of the 2nd Plaint Receiver, it showed that the coast line ( High Tide ) was 39 meters from the land, details as shown in the letter of Pattaya City Hall, by the Mayor to Secretary of the Environmental and Surroundings Planning Office, Dated on 5 April 2007, which was used by the 1st Plaintiff as the attachment for its testimonial dated on 19 July 2007, No 13 in order, which 9 Litigants need to appoint this document to be the attachment NO. 4.
The report of the Department of Civil Engineering and City Planning, dated on 18 December 2007 wrote that “…. The coast line at the MSL must be measured at the Mean Sea Level of 0.00 meters, and when measure out 100 meters into the sea will be the construction control are, referring to the annexed map of the Royal Decree of B.E. 2479, to control the areas of Banglamung / Nong Plalai / Nongprue Sub-Districts of Banglamung District of Chonburi Province of B.E. 2521, and the measurement is made from the aforesaid point ONTO the land to reach the beginning of the building for another 100 meter, it will be the distance of The Construction Control Area of 200 Meters, referring to Section 3 of The Regulations of Issue 8, which was amended and added by the Issue 9 of B.E. 2521, stipulated in accordance with the Construction Control Acts of B.E. 2479, which prohibit the constructions over 14 meters high….”
And from the report of procedure following the court’s order, which was the attachment of the MOST URGENT LETTER of the Department of Civil Engineering and City Planning: Report Ref. Mor Tor 0710/9634 dated 19 December 2007. It showed that:
( 1 ) The measurement from the coast line at the MSL ( + 0.00 ) on the NORTH point of the dispute land until reaching the Bench Mark, would be 50.15 meter. Then measure onto the dispute land for another 49.85 meters would be 100 meters measured from the coast line at the MSL ( + 0.00 ) ON THIS SIDE
( 2 ) The measurement from the coast line at the MSL ( + 0.00 ) on the SOUTH point of the dispute land until reaching the Bench Mark, would be 49.60 meter. Then measure onto the dispute land for another 50.40 meters would be 100 meters 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 on 2 January 2008, together with the witness’s testimonial of 15 January 2008, by Mr. Veera Visuthirattanakul, 7th Class Lawyer of the Department of Civil Engineer and City Planning, testified as the Witness, that … “if measure from the construction control line, as referred in The Royal Decree B.E. 2521, it would be the distance of the building as same as measuring from the MSL onto the land for 100 meter. From the facts which explained to the Supreme Court of Administration as above, if the interpretation of the Ministerial Regulations of Issue 9 ( B.E. 2521 ) is made as written in the report and the testimony of the witness, the measurement from the coast line at the MSL ( +0.00 ) on the NORTH and SOUTH point of the dispute land until reaching the Bench Mark of the 2nd Plaint Receiver would be 50.15 and 49.60 meters in order. The Regulations of Issue 8 ( B.E. 2519 ) is compared at the coast line until reaching the land mark of the 2nd Plaint Receiver, it would be 39 meters. It shows that the coast line as the MSL and the coast line ( High Tide ) is approximately the distance of 11 meters. The aforesaid interpretation of Regulations of Issue 9 ( B.E. 2521 ) would make the Construction Control Area referring to Section 3.(8), which is the prohibited area for the buildings over 14 meters high, narrower that the Construction Control Line of Section 3.(8) of the Regulations of Issue 8 ( B.E. 2519 ), which allowing the constructions over 14 meters high to be constructed 11 meters closer to the sea, which is contrary to the intention and purpose of the Regulations of Issue 9 ( B.E. 2521 ) which intended to expand the area as mentioned, and intended
to expand the Construction Control Area by the shore line. If the intention was nterpreted that the expansion of the Construction Control Area of the Regulations of Issue 9 ( B.E. 2521 ) is to expand the distance at the seaside onto the land, then it will be in accord with the intention and purpose of Issue 9 ( B.E. 2521), as mentioned to the Supreme Court of Administration as above.
So the testimony of Mr. Veera Visuthirattanakul, said that the dispute building is 103 and 102 meters onto the land from the MSL”, if this phrase was interpreted that the starting point of the Construction Control Area was 200 meters onto the land from the MSL, then the dispute building would be within 200 meters, which was the Construction Control Area, stipulated in the Regulations of Issue 9 ( B.E. 2521 ), section 3.(8 ), which is the prohibited area for the building over 14 meters high, as the aforesaid reasons explained to the Supreme Court of Administration as above.
2?3 The Plaintiff would like to add on the explanation to the Supreme Court of Administration that, by Article 79 of the Construction Control Acts of B.E. 2522, stipulated that …. “All Ministerial Regulations / Local provisions / Provincial provisions / Rules and Regulations / Notices / or Other Orders, which stipulated by referring to The Construction Control Acts of B.E. 2579, / or the Construction Control for the burning areas of B.E. 2476, they will be used to enforce by law as long as there is no contrary to this Acts ”. 9 Plaintiffs see that, not just “ All Ministerial Regulations / Local provisions / Provincial provisions / Rules and Regulations / Notices / or Other Orders, which stipulated by referring to both of The Construction Control Acts as mentioned, , they will be used to enforce by law as long as there is no contrary to the Construction Control Acts of B.E. 2522, HOWEVER, the interpretation for enforcing the Ministerial Regulations / Local Provisions /Or Orders as above, must be interpreted to be in accord with the intention for enforcing the Construction Control Acts of B.E. 2522, and also the involve laws. This is to be in agreement with the intention of the Construction Control Acts of B.E. 2522, in Article 5 of this Acts, which stipulated that The Minister of the Ministry of the Interior has power to enforce the Ministerial Regulations to enforce in different circumstances, referring to Article 8, “ For the safety and security / Fire Protection / Public Health / Environmental Quality Control / City Planning / Architectural and Traffic Serving / including other fields which are involved with the procedures to be in accord with this Acts, stipulated the Minister with the assistance of the Construction Control Committee, to be the in power to create the Regulations to stipulate: ( 10 ) The Prohibited Area for certain types / kinds of constructions to be contructed / modified / demolished / Moved and used / or changed the purposes of buildings. ETC.
Since the Construction Control Acts of B.E. 2522 was enforced until now, there have been 12 Ministerial Regulations which are still active, following Article 8(10 ), in the part that involving the area by the sea, which are the public attractions and tourist destinations , by stipulating the prohibition for certain types of buildings which may cause the disturbance and waste, in the same way of the stipulation of Regulations of Issue 8 and 9, which stipulated in accordance with The Construction Control Acts of B.E. 2479, by in each issue stipulates the matters in the points that involve the stipulation of Construction Control Area of the building over 12 meters high as follow:
( 1 ) Ministerial Regulation 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 50 meters onto the land from the shore ) the restricted area in which the Building of 12 meters shall not be permitted to be constructed.
( 2 ) Ministerial Regulation Issue 20 (B.E. 2532 ) Phu-ket Province (Western shorelines)
- Within 200 meters from the shore shall be the restricted area in which the Building of 12 meters shall not be permitted to be constructed.
( 3 )Ministerial Regulation Issue 22 (B.E. 2532) Suratthani Province ( Samui Island )
- Setting of 200 meters measured from coast line onto the land in which the Building with the height more than 12 meters shall not be permitted.
( 4 ) Ministerial Regulation Issue 30 (B.E. 2534 ) Phetchaburi Province ( Cha-um )
- Setting of 200 meters measured from coast line in which the Building of 12 meters shall not be built.
(5) Ministerial Regulation Issue 31 (B.E. 2534 ) Chanthaburi Province
- Setting of 200 meters measured from coast line in which the Building of 12 meters shall not be built.
(6) Ministerial Regulation Issue 36(B.E. 2535) Prachuap-Kirikhun Province (Hua-Hin)
- Setting of 200 meters measured from coast line in which the Building of 12 meters shall not be built.
( 7 ) The Ministerial Regulations fixes the prohibited area for certain kinds or types of constructions / or modification or changing purposes of building of Pang-Nga Province of B.E. 2544
- Setting of 225 meters measured from coast line in which the Building of 12 meters shall not be built.
( 8 ) Ministerial Regulation (B.E. 2546) Trad Province
- Setting of 200 meters measured from coast line in which the Building with the height more than 12 meters shall not be permitted.
( 9 ) Ministerial Regulation (B.E. 2547) Khabi Province
Setting of 200 meters measured from coast line in which the Building of 12 meters shall not be built?
( 10 ) Ministerial Regulation (B.E. 2543) Trang Province ( accepted Lee-pea island )
3- Setting of 200 meters measured from coast line in which the building of 12 meters shall not be built.
( 11 ) Ministerial Regulation (B.E. 2549 ) Ranong Province
- Setting of 200 meters measured from coast line in which the Building of 12 meters shall not be built.
( 12 ) Ministerial Regulation (B.E. 2549) Sa-toon Province ( accepted Lee-peh island )
- Setting of 200 meters measured from coast line in which the building of 12 meters shall not be built?
Apart from the aforesaid stipulations, The Ministerial Regulations also marked the meaning of The Coast Line that, it’s where water reaches the highest level which causes by nature. Details as shown in the attachment No. 5: The copies of 12 Ministerial Regulations.
It shows that the intention of The Construction Control Acts of B।E. 2522 and the involved Regulations which have been using to control all beaches in the kingdom is to save the environment and the ecological system all around the coast line for the area of 200 meters from the shore line, marked at the high tide, to prohibit the types of constructions which may cause the impact, including the buildings with over 12 meters high as mentioned. So the Regulations of Issue 9 ( B.E. 2521 ) stipulated to fix 200 meters from “the Construction Control Line”, which is 100 meters away into the sea from the coast line at the MSL, to be the prohibited area for the building over 14 meters high IS ALSO CONTRARY to the intention of enforcing the Construction Control Acts of B.E. 2522.

3। The facts seen from the order of lifting the injunction / or the protection procedure to minimize injurious consequences before judgment of the Administrative Court of Rayong province, given the protection procedure to minimize injurious consequences before judgment given on 16 January 2008 , by using facts from the report of the Department of Civil Engineering and City Planning / and the testimony of the witness, summarized that The Construction Control Line shown in the map annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 – Controlling over the region of Banglamung / Naklua / Nong Plalai / Nongprue Sub-districts of Chonburi province, The B.E. 2521 is the distance of 100 meters further into the sea from the MSL, the dispute building would be over 200 meter from the building control area as referred by the Section 3 of the Ministerial Regulations of Issue 9 ( B.E. 2521 ), which buildings over 14 meters from road surfaces are also not permitted to be constructed.

The aforesaid decision of the Administrative Court of Rayong province shown many points of mistakes and errors of the inquiry for hearing/ interpretation and enforcing law in order to control the constructions by law, in the way of which is contrary to the intentions / or purposes of law which stipulated to verify and protect? The result of the aforesaid interpretation is the construction control area referring to the Ministerial Regulations of Issue 9 ( B। E. 2519 ) becomes 11 meters which is in opposite with the intentions and purposes of law. As for the interpretation of intentions and purposes of the Ministerial Regulation of Issue 9, referring to the annexed remark of the aforesaid regulations which stated that, the area of construction control is expanded. The expansion of construction control stipulated in Section 3. ( 1 )- ( 8 ), the construction control area must be measured from the MSL, onto the land for 200 meters, then it will fulfill the intentions of the regulations of Issue 9 and it will be operative , and truly useful for public. This case has no cause to lift the aforesaid injunction / or revoke the protection procedure to minimize injurious consequences before judgment. With all reasons, facts and matters of laws submitting in this appeal to the Supreme Court of Administration, 9 Litigants need to request for court’s kind consideration to give court’s decision or order to revoke the order of lifting injunction or protection procedure to minimize injurious consequences before judgment of the Administrative Court of Rayong province, as requested by 9 Litigants and with the operative result further on.

Yours Faithfully,
Signed: The Approved Person of 9 Litigants
Mr. Surachai Trong-ngam”