Statement
Of
Plaintiffs #1-5 and 8-10 Number of Black Case: Or. 415/ 2552
The Supreme Administrative Court
6 August
2013
Mr. Tenblue A. J. Maria #1st,
with the associates of 10 Plaintiffs
Pattaya City Hall Official and associates of 2 Plaint Receivers
I, hereby,: Miss Pajama Plagaid and /
or Mr. Surachai Trong-ngam In capacity of: Appointed
persons of 1st- 5th and 8th- 10th
Plaintiffs,
Born: -, Occupation: Attorney
at Law
Address: 505/
12 Ramkhamhaeng Road, Soi:
Ramkhamhaeng 39 ( Tepleela 1)
Sub-district: Plapla, District:
Wang Tong Lang, Province:
Bangkok,
Zip code: 10310, Tel:
02- 318 4292-3,
Wishing to submit this
Statement with the following contents;
1)
This case, the Supreme Administrative Court has fixed 1st
Court Hearing
on August 6th,
2013
which the Plaintiffs # 1,2,3,4,5,8,9,10 would like to submit a statement
affirming the facts and law points showing that the order given by 1st
Plaint Receiver which was the Construction License No: 162/ 2550, dated on 28
November 2006 for 2nd Plaint Receiver to construct its disputed
building was unlawful which the essence of this appeal is as follow;
2)
The Order given to allow the construction to be constructed
the
Disputed building was in
contrary with the MR 9 (B.E. 2521) promulgated to be in accordance with the
Condominium Acts B. E. 2479.
As the First
Administrative Court deemed that “…. It has been seen that,
the Annexed map of such
Royal Decree fixes the mark of CCL to be located 100 meters from the shoreline
at MSL which by MR 9 (2521), promulgated to be in accordance with the
Condominium Acts B. E. 2479 (MR 9 – promulgated… B. E. 2479) the
measurement is fixed to be done from shorelines at MSL to find the CCL first by
measuring from the shoreline at MSL outward into the sea for 100 meters and
that will be …………………………..
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… CCB to be in agreement
with the Annexed map of such Royal Decree. Then when measuring from CCB inward onto the land for 200
meters, it will be the area within 200 meters measuring from CCB….” which the
Administrative Court seek the information regarding the measurement from the
shoreline at MSL of CECP and then deemed that “… it is seen that CECP conducted
correct measurement method and when the Disputed Building of 2nd
Plaint Receiver is located outside the 100 meters from the shoreline at MSL,
such building therefore is not located within the 200 meters, measuring from
the CCB of the Annexed map of such Royal Decree, by Clause 3 of MR 8 –
promulgated… B. E. 2479, which was amended by Clause 2 of MR 9 – promulgated… B.
E. 2479, therefore, the order given by 1st Plaint Receiver giving
the Construction License N0: 162/ 2550, dated November 28th, 2006 to
2nd Plaint Receiver was lawful”. The 8 Plaintiffs then lodged their appeal against the
Judgment of First Administrative court because of the following reasons,
2.1 The Interpretation for enforcing the law to
take control of the
buildings which was MR 9–Promulgated…, interpreted by the
First Administrative Court was the interpretation that is in
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contrary with the intention of
law
which the First Administrative Court had to consider the intention and purpose
of all relevant laws which, in Nongprue Sub-district of Banglamung
District of Chonburi Province which is
the located region of the disputed
building in this case, the first stipulation of
law promulgated to fix the CCB was..
MR
8 – promulgated… B. E. 2479, promulgated with the reason, or in other words, the purpose in promulgating such MR 8 that “As the Royal Decree enforcing the Construction
Control Acts B.E. 2479 has been issued
over Banglamung, Nakluea, and Nongprue Sub-districts
of Banglamung District, Chonburi Province, B.E. 2499 and the aforementioned areas are tourist vocational areas, therefore the kinds of construction which may
cause disturbance and annoyance and
rubbish or wasted products including environmental
ruining are forbidden, this Ministerial Regulations therefore is needed to be issued”.
From
seeing the purposing of MR 8 – promulgated … B.E. 2479, it is seen that this regulation is issued with the
key purpose of taking control on the
construction of buildings in the mentioned areas by giving conditions regarding the construction of various types of building as follow;
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…
2) To fix the areas under the jurisdiction of this regulations to be free from
following types of construction
(1)
–
(14)…
3) To fix within 100 meters measuring from CCB, shown on the Annexed
map
of the Royal Decree, promulgating to enforce the Construction
Control
Acts of B.E. 2479 over Banglamung / Naklua and Nongprue Sub-
district
of Banglamung district of Chonburi province of B.E. 2499, on the
sea shore, to be the prohibited areas for the following types of
constructions:
1. Oil, Gasoline storage and distribution
2. Entertainment halls
3. Attached houses
4. Attached buildings
5. Fresh food market
6. Car or motorcycle fixing or air compressing spraying garages
7. Goods storages
8. Over 14 meter tall type of buildings from road surfaces
(1)…(2)
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By the provision of MR 8
(2519) as above, it is seen that all the buildings which are forbidden to be
constructed and some which are forbidden in certain areas within the regions as
fixed by this MR are the types of building that expected to cause disturbance,
waste products and environmental ruins.
The intention of this law was to take control the constructions on land
and NOT in the sea plus this was the stipulation of law for environmental
conditions saving in all cities by the seas shown by the stipulated condition
concerning the set back distance between the sea to the forbidden buildings and
the types of forbidden buildings, all are to conserve the environmental
conditions of seaside tourist destinations of Thailand to be in good
conditions.
Later on, the Royal
Decree enforcing
the Construction Control Acts B.E. 2479 over Banglamung, Nongplalai, Nakluea,
and Nongprue Sub-districts of Banglamung District, Chonburi Province,
B.E. 2521 was promulgated with the reason which is “…as the building
constructions in Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts
of Banglamung District, Chonburi Province have expanded rapidly and it has been
found that some types of construction was out of the provision of laws
governing Building Construction, because the CCL as shown in the Annexed Map of
the Royal Decree, stimulated to enforce the Construction Control Acts B.E. 2479
over Banglamung,
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Nakluea, and Nongprue Sub-districts
of Banglamung District, Chonburi Province, B.E. 2499 did not cover the areas
which those mentioned buildings were constructed, the Royal Decree then should be
amended by expanding the CCL, especially the seaside for the local
officials to be able to enforce the laws, this Ministerial Regulations
therefore is needed to be issued.”
To be in agreement with
the promulgation of the aforementioned Royal Decree, the Ministerial
Regulations Issue 9 (B.E. 2521) therefore was promulgated to be in accordance
with the Construction Control Acts B.E. 2479 with the reason which is “because
there was an improvement of CCB in Banglamung, Naklua and Nongprue Sub-districts
by expanding following the Construction Control Acts B.E. 2479 which enforces
over Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of
Banglamung District, Chonburi Province, B.E. 2521, the Ministerial Regulations
Issue 8 (B.E. 2519) promulgated to be in accordance with the Construction Control
Acts B.E. 2479 governing Types of constructions forbidden within the CCL to be
in accordance with such Royal Decree thereby, is needed to be revised to be
more appropriate and more pursuant, this Ministerial Regulations therefore is
needed to be issued.”
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Considering the types of
buildings which are forbidden to be constructed as shown in Clause 3 (1) – (8)
of MR 8 (2519) and MR 9 (2521) however, it is seen that they are the types of
building which are supposed to be constructed on land and certainly not in the
sea. Especially, considering the intention of law promulgating, it is seen that
it was the law promulgating to conserve the environmental conditions of cities
by the seas as shown as the key essence on the set back distance from the sea to
forbidden constructions and the types of forbidden buildings. This is not able
to interpret the phrase “expanding to be wider than before” as shown on
the Annexed remark of MR 9 (2521) to be the expansion of CCB outward into the
sea, because it will make the expansion of CCB unrealistic to be enforced to
serve the intention and purpose of such MR. This is only to interpret that Clause 3 of MR 9 (2521) which
fixes the area within 200 meters …….is the expansion of CCB to be in agreement
with Clause 3 (1) – (8) from the shore inward onto the land to be wider than
before from 100 meters to be 200 meters.
The interpretation which
made the expansion of CCB outward into the sea of the First Administrative
Court is not in agreement with the intention of Royal Degree B. E. 2521 and MR
9 (2521) as said above, therefore, how the Rayong Administrative Court made
such interpretation, it will allow buildings higher than 14 meters from road
surfaces to be constructed closer to the sea which is in contrary with the law’s
intention.
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2.2 The starting
point of measurement to find CCB as pursuant with MR 8 (2519) – promulgated
….2479, Clause 3 which stipulates that “to fix the area within 100 meters,
measured from the CCL shown in the Annexed Map of Royal Decree B.E. 2499 on the
Seaside to be the Prohibited area for the following types of construction to be
constructed.......... (8) Buildings higher than 14 meters from road surfaces”
The starting point of
measurement to find CCB as pursuant with MR 9 (2521) – promulgated ….2479,
Clause 2 which stipulates to cancel the stipulation in Clause 3 of Mr 8 (2519)
and replaced by the following stipulation which is “Clause 3: To fix within 200
meters, measured from the CCB as in accordance with the Annexed Map of Royal
Decree B.E. 2521 over Banglamung, Nongplalai, Naklua, Nongprue Sub-district of
Banglamung of Chonburi Province B. E. 2521, on the Seaside to be the prohibited
areas for the following types of construction to be constructed....... (8)
Buildings higher than 14 meters from road surfaces”.
The starting point of
measurement to find CCB to be in accordance with both MRs are not the same
point as Mr. Surapol Pongtaipat……………
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who was a Senior
Engineer – substituting Chief of Department of Civil Engineer and City Planning
explained in his letter to Rayong Administrative Court that “2. The 100 meters
as shown in Clause 3 of MR 8 (2519) – promulgated…2479 and the 200 meters as
shown in Clause 3 of MR 9 (2521) – promulgated…2479 are not the same line
because MR 8 (2519) does not fix to measure at MSL but MR 9 (2521) fixes to
only measure at MSL”.
Clause 3 of MR 8 (2519)
stipulates that “To fix within 100 meters, measured from the CCB as in
accordance with the Annexed Map of Royal Decree B.E. 2499, on the Seaside to be
the prohibited areas for the following types of construction to be
constructed.......... (8) Buildings higher than 14 meters from road
surfaces”. CECP explained to
the Rayong Administrative Court about the starting point of measurement follow
MR 8 was to be started at the shoreline which meant from High tide inward onto
the land for 100 meters and as shown in the letter dated on 5 April 2550 –
Attachment to the Appeal # 5 stated that 1st Plaint Receiver used to
make a measurement from the shoreline (at high tide) to the mark on the land of
2nd Plaint Receiver which was 39 meters, therefore the CCB by MR 8
(2519) must have been 61 meters deeper inside the land of 2nd Plaint
Receiver.
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MR 9 (2521), Clause 3
which stipulates that “To fix within 200 meters, measured from the CCB as in
accordance with the Annexed Map of Royal Decree B.E. 2521, on the Seaside to be
the prohibited areas for the following types of construction to be
constructed....... (8) Buildings higher than 14 meters from road surfaces”
which if the measurement is made following the decision of Rayong
Administrative Court and the report on measurement result of CECP as mentioned
above however, it is clearly seen that the CCB of MR 9 (2521) on the North side
of the disputed land must be getting deeper into the land of 2nd
Plaint Receiver for 49.85 meters and on the South side will be 50.40 meters.
Comparing between the
CCB of MR 8 (2519) and MR 9 (2521) will show that 2nd Plaint
Receiver could construct its building higher than 14 meters from road surfaces
closer to the sea which is 10.85 meters on the North side and 11.40 meters on
the South side.
Therefore, the
interpretation made to MR 9 (2521) by Rayong Administrative Court as above is
the interpretation to enforce the law in the way that is in contrary with the
intention and purpose of MR 9 (2521) and the Royal Decree (2521) which have
tried to expand CCB to be wider than before.
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2.3 CECP which is
authorized to enforce MR 8 and 9, fails to interpret both MRs to be in accordance
with the intention and purpose of both mentioned MRs and the interpretation
made to both MRs was made with no stability means the interpretation made
differently on each time which is not supposed to happen by the performance of
a law enforcing authority as followed
On 19 June 2550, CECP by
Mr. Surapol Pongtaipat - Senior Engineer, Substituting Chief of Department of
Civil Engineer and City Planning issued Most Urgent Letter # Mor. Tor. 0710 /
4245 to Chief Judge of Rayong Administrative Court, referred to the Order of
Rayong Administrative Court given to seek an explanation for the Black Case No:
54/ 2550 dated 4 May 2550 which Rayong Administrative Court gave an order for
CECP to submit its written explanation regarding the following points;
1)
As
by the Annexed map of Royal Decree enforcing the Construction Control Acts B.E.
2479 over Banglamung, Nongplalai, Naklua and Nongprue Sub-district of
Banglamung District of Chonburi province B.E. 2521, the CCL on the seaside is
fixed at 100 meters from the shoreline, only at MSL. MSL is at which spot, with or without any noticeable
mark and is there any noticeable mark for the 100 meter distance from the
shoreline?
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2)
The
100 meters distance as stated in Clause 3 of MR 8 (2519) – promulgated…. 2479
and the 200 meters distance as stated in Clause 3 of MR 9 (2521) –
promulgated…. 2479 are or are not the same line and with or without any
noticeable mark?
CECP
discussed the mentioned matter with the Construction Control Committee and the
decision was given that…
1.
The
shoreline at MSL is the point where the shoreline meets MSL which the MSL level
or value is shown by the Bench marks of Hydrographic Department of which the
MSL level is the stabled value or level but the shoreline shifts affected by
different seasons. Therefore, the shoreline at MSL at Spot # 1 or Spot # 2 as
shown in the attached picture will depend on the time the measurement is made.
It is unable for the shoreline at MSL to be seen if the mark # 1 and # 2 are
not placed at the shoreline on the day the measurement is supposed to be made.
2.
The
100 meter distance as stated in Clause 3 of MR 8 (2519) –
promulgated….2479 and the 200
meter distance as stated in Clause 3 of MR 9 (2521) – promulgated….2479 are
not the same line because …………..
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The
shoreline as fixed by MR 8 (2519) is not to be measured at MSL but MR 9 (2521)
is fixed to be measured
at MSL
only.
By
the explanation of CECP to Rayong Administrative Court as above, it is seen that CECP has discussed with the Construction Control Committee to decide that
the 100 meter distance as stated in
Clause 3 of MR 8 (2519) and the 200 meter
distance as stated in Clause 3 of MR 9 (2521) are not the same line as shown by the reason above.
Afterward,
on 30 April 2551 (2008), CECP by Mr. Surapol Pongtaipat - Senior Engineer,
Substituting Chief of Department of Civil Engineer and City Planning issued the
letter # Mor. Tor. 0710 / 3362 to Juristic Person Manager of Jomthien Complex
Condotel, Subject: Requesting CECP to define the correct
direction and measurement method to find CCL which the essence of such letter
is as followed;
“The key difference between the two Ministerial
Regulations is that Ministerial
Regulation No. 8 B.E. 2519 fixes CCL to be at the shoreline but without fixing
the definite level of depth in the sea to be measured but as for Ministerial
Regulation No. 9 B.E. 2523, the CCL is fixed to be at the shoreline at MSL
then…
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…going outward into the sea for 100 meters. By Clause 3of MR 8 (2519), it
fixes the construction restricting area is the area within 100 meters from CCB
as shown on the Annexed Map of Royal Decree B. E. 2499 to be the 100 meter
distance from the shoreline.
According to Clause 3 of Ministerial Regulation 9 B.E. 2521, the
construction restricting area within the 200 meter is to be measured from CCL
as shown on the Annexed Map of Royal Decree B. E. 2521. The aforementioned CCL therefore, must
be measured from the shoreline at MSL which is located at 100th
meter outward into the sea which if the measurement is made from MSL inward
onto the land for another 100 meters then it will be CCL which resulted from
the measurement made from CCL as in accordance with the Annexed map of Royal
Decree B. E. 2521 to be 200th meter exactly.
This should match the original intention of Ministerial
Regulation 8 B.E. 2519 which fixes the distance from the shoreline for 100
meter but it is clearer defined in Ministerial Regulation 9 B.E. 2521 to
measure from the shoreline at MSL and the construction restricting area is
expanded outward into the sea for another 100 meters from the shoreline at MSL
which originally, CCB did not cover such area in the sea. Therefore, the building applications
which are submitted after 31 December 2521 will be under the rules of Clause 3
which has been amended by MR 9 (2521) which the measurement has to be made from
CCL inward onto the land for 200 meters /or/ to be made from the shoreline at
MSL inward onto the land for 100
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meters and it will result equal area of building
restricting area on land for both Clause 3 of MR 8 (2519) and Clause 3 of MR 9
(2521), because the starting point of measurement is at MSL.”
By its interpretation and analyzing led to say that the
starting point of measurement to find CCB which is the key issue of this case,
fixed by MR 8 (2519) and MR 9 (2521) are not the same line, shown in the letter
to the court dated: 19 June 2549 but then afterward, its explanation sent to
JPM of the 8 Plaintiffs on the letter dated: 30 April 1550 changed to explain
that they are the same spot, it is shown that the interpretation made to the
law in different letters are not the same interpretation whatsoever which this
is clearly shown that CECP did not use theorem in interpreting the law
including did not study the intention of promulgating both MRs whatsoever, for
what course, it is out of the knowledge of the 8 Plaintiffs to understand. However, the interpretation made
to both MRs by CECP as mentioned happens to impact the living conditions of
unit owners of JCC and the 8 Plaintiffs plus to the economic and appearance of
Thailand in the eyes of lots of foreigners.
When CECP fails to make a clear interpretation to MR 8
(2519) and MR 9 (2521) to find if the starting points…..
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…of measurement to
find CCL are or are not the same lines as shown
in both letters of CECP showing complete different contents and opinions to one another until it is hard to believe
that CECP used any theorem in interpreting the law. This is to be considered that the interpretation made to the starting point of measurement to find CCB of both MRs are
still unclear which may lead to wrong
enforcement of law which is in contrary with the
true intention of law. This is in need to use the intention, principal and reason on promulgating the law to
be the key guideline in interpreting the
law for correct and fair enforcement of
such law.
The 8 Plaintiffs wish to state to the Supreme
Administrative Court that, as the intention of both MRs is to restrict certain
types of building to be constructed on the land along the seaside and not to
take control in the sea because all clarified types of building in Clause 3 (1)
– (8) of both MR 8 (2519) and MR 9 (2521) however, it is clearly shown that
those buildings are supposed to be constructed on land. Apart from that, if the interpretation
is made following the decision of Rayong Administrative Court however, 2nd
Plaint Receiver then will be able to construct its building which is higher
than 14 meters from road surfaces closer to the sea which is certainly in
contrary with the intention of the promulgation of both MRs.
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2.4) By the Annexed
map of Royal Decree B.E. 2521, it appears to
be a line where pointed by an arrow (to be called “A”) with a definition said Shoreline at MSL, a line where
pointed by an arrow (to be called “B”)
with a definition said 100 meters which line
pointed by the B arrow on such map is defined to be CCL. Considering all symbols and definitions on such
map will clearly show no definition to
state that the line pointed by B Arrow with the
definition said CCL is the 100th meter which measured from which point which this could not be interpreted
that it is to be measured for 100 meters
from the line pointed by A arrow with the
definition said Shoreline at MSL.
If the map is meant to explain
that the line pointed by B arrow is 100 meters away from the line pointed by A arrow from the shoreline
at MSL then, it must be a clear
explanation as shown in such map at C 1 (supposing
point) and C 2 (supposing point) which explained that “40 meters from the center of Highway # 3” therefore, the interpretation which stated that CCB must be
started at the shoreline at MSL outward
into the sea for 100 meters to be CCL is
not correct by Map Reading Method.
By the said reasons, facts and law points, it is seen
that the intention of promulgating MR 8
(2519) and MR 9 (2521) are to take
control of buildings on land and not in the sea. Plus this was
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the issue of law to conserve the environmental conditions
of the cities by the sea proven by the
provision of law regarding the set back
distance between the forbidden buildings and the sea and the types of restricted construction in such
law. This is to conserve the environmental conditions of the
tourist vocational areas of Thailand to
be beautiful and remain in good condition. Clause
2 of MR 9 (2521) which was promulgated to amend Clause 3 of MR 8 (2519) fixes to use the Annexed map of Royal Decree, which was promulgated to enforce the
Construction Control Acts B.E. 2479 over
Banglamung, Nongplalai, Naklua and
Nongprue Sub-district of Banglamung District of Chonburi province, to define CCB. The interpretation to enforce CCB by such Royal Decree B. E. 2521 must also be
interpreted to be in agreement with the
intention of the promulgation of MR 9 (2521)
by interpreting that MR 9 (2521) which fixes the area within 200 meters measured from CCB as shown in the Royal Decree B.E. 2521, on the seaside to be the area
which the constructions as stated in
Clause 3 (1) – ( 8) are forbidden, is the expansion
of CCB to be pursuant with Clause 3 (1) – (8) from the seaside inward onto the land from 100 meters which originally fixed by MR 8 (2519) to be wider
than before to be 200 meters which the
disputed building is higher than 14 meters from road surfaces and is located less than 200 meters from CCB considering Clause 3 of MR 8 (2519) which was
amended by…….
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…Clause 2 of MR 9 (2521). The permission for such building to be able to be constructed therefore is unlawful.
2.5) The 8 Plaintiffs wish to explain to the Supreme Administrative Court further that the
enforcement of MR 8 (2519) and MR 9
(2521) or any other laws must be interpreted to be in accordance with the Constitution which is the highest law of the country. Whist 1st Plaint Receiver was in the process of issuing the construction license for 2nd
Plaint Receiver on 28 November 2549
(2006), the Temporally Constitution of Thailand B.E. 2549 which was enforced at the time and Article 3 stipulated that “ With the provisions of this
Constitution, the human dignity, right,
liberty and equality of Thais, which have been protected
in accordance with Thailand’s ruling practice in the democratic regime of government with the King as Head of State, shall be protected by this Constitution” and
Article 56 of Constitution of Thailand B.E. 2540 which was enforced before the Constitution of Thailand B.E. 2549 stated
that “ The right of a person to give to
the State and communities participation in the preservation
and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of the environment for usual and
consistent survival in the environment
which is not hazardous to his or her health and
sanitary condition, welfare or quality of life, shall be protected” by the provision of such
Constitution. The 8 Plaintiffs who are the residents of ………
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Banglamung, Nongplalai, Naklua and Nongprue Sub-districts
of Banglamung District of Chonburi
province are entitled to be protected on
the rights of community to be able to live in good environmental surroundings which is not hazardous to the health, sanitary condition, welfare or quality
of lives and have the right to be
involved in protecting and getting benefit from the natural resources for the benefit of majority in the community and for the long preserving of natural
resources and for the balance and
prolonging of environment to be in accordance with Article 56 of Thai Constitution B.E. 2540 and Article 3 of Thai Constitution B.E. 2549 (Temporally Issue) as
kindly explained to the Supreme
Administrative Court above.
The 8 Plaintiffs are not able to
agree with the decision of Rayong Administrative Court which stated that “It is seen that, by the Annexed map of such Royal Decree, it fixes the symbol of CCL
to be 100 meters from the shoreline at
MSL which by MR 9 (2521) – promulgated ….
2479, it fixes to be measured from CCB. Therefore, the measurement to find the distance from CCB is have to be started at the shoreline at MSL first to find CCL by
measuring from the shoreline at MSL
outward into the sea for 100 meters and it will be the CCB as shown on the Annexed map of such Royal Decree before measuring from CCB inward onto the land
for 200 meters, it will be the area
within 200 meters measuring from
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CCB…..”.
Such interpretation and enforcement of MR 9 (2521) will give the result for the buildings higher
than law stipulation to be constructed
closer to the sea which will impact the right to be benefited by the natural resources and the right to have normal living condition continuously in good
environmental conditions of the 8
Plaintiffs and the community in aforementioned regions in the future as affirmed and protected by both Article 56 of Thai Constitution B.E. 2540 and Article 3 of Thai
Constitution B.E. 2549 (Temporally
Issue).
3)The order given permitting
the disputed building to be constructed is literally in contrary with MR 33
(B.E. 2535) which was amended by MR 50 (B.E. 2540) – promulgated to be in
accordance with Construction
Control Acts B.E. 2522.
The 8 Plaintiffs wish to
explain to the Supreme Administrative Court that the disputed building of 2nd
Plaint Receiver was permitted to be constructed on the land title deed # 104606
and 123238 of 2nd Plaint Receiver of which the South wing which is
the outer part of the building is located only 1 meter from the land title deed
# 1149 of Mr. Kriangchai Panitpakdee.
Even though he has designated this land to be the walkway, driveway and
land for utilities for both Land # 104606 and 123238, Banglamung District of
Chonburi which 2nd Plaint Receiver used them to apply for the
construction license however, it only make the 2 plots of land of 2nd
Plaint Receiver entitled to gain
Page 23:
benefit of usage of Land
# 1149 for walkway, driveway and utilities as designated only which it makes 2nd
Plaint Receiver has the right to gain benefit from the Servitude usage over the
land 1149 as the 6-meter-wide road in the project of the disputed building just
to be pursuant with Clause 3 of MR 33 (2535) which was amended by MR 50 (2540)
– promulgated to be in accordance with the Construction Control Acts B.E. 2522
which stipulates that the projects of high or extra large buildings must
provide minimum 6-meter-wide and roofless project road for fire trucks to be
able to get through for the purpose of fire prevention, but Clause 4 of MR 33
(2535) which was amended by MR 50 (2540) –
promulgated to be in accordance with the Construction Control Acts B.E. 2522
stipulates clearly that “the outer part of high or extra large buildings
whether the parts on or under the ground must be located at least 6 meters from
the other person’s land’s territories or public roads excluding the foundation
of building”. Clause 4 of this
MR intending to protect public benefit is a different provision from Clause 3
whatsoever, as shown in the details of the Appeal submitted by the 8
Plaintiffs. Therefore, when the
facts of this case is found that
the building which 2nd Plaint Receiver applied for the
building license is located only 1 meter from the Land Title deed # 1149 of Mr.
Kriangchai Panitpakdee however, it is certainly to be considered that.…
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….the outer part of the
building is located less than 6 meters from the other person’s land’s territory
or public roads and it is not possible to rely on an individual’s agreement on
designating the Servitude to be an excuse to
not follow the law which intends to protect public benefit. The permission for such building to be
able to be constructed therefore, was clearly seen to be in contrary with
Clause 4 of MR 33 (2535) which was amended by MR 50 (2540) – promulgated to be
in accordance with the Construction Control Acts B.E. 2522 and it was the
unlawful Administrative order when the First Administrative Court made its
decision that,… “even though the outer part of the building on the Southside is
located only 1 meter from the Land # 1149 but when its width is added with the
Land # 1149 which has been designated to be the Servitude land and the
6-meter-wide project road however, it then will be a 7-meter-area which made
the disputed building, whether on and under the ground has its outer parts
located more than 6 meters from the other person’s land’s territories as
pursuant with Clause 4 of MR 33 (2535) which was amended by Clause 7 of MR 50
(2540) – promulgated to be in accordance with the Construction Control Acts B.E. 2522”, to be wrong and in contrary with the intention of law.
By all the facts and law
points as explained to the court as above, May
the Supreme Administrative Court flip the judgment of the First Administrative
Court by giving the judgment to revoke the Construction license No: 162/ 2550
dated: 28 November 2549 given by 1st Plaint Receiver for this will
be a standard on enforcement of the Construction Control Acts and the related
laws used by the state
Page 25:
authorities in order to conserve and maintain the
environmental conditions of Pattaya to balance the development of the city with
the good environmental conditions to be the affirmation and protection of right
of the Plaintiffs as in accordance with the Constitution and law in the future.
Faithfully Yours,
Signed by Miss Pajama
Plagate and Mr. Surachai Troeng-ngaam
(Appointed person of
Plaintiffs # 1-5 and 8-10)
Definitions:
1.
Civil Engineer and City Planning Department CECP
2.
Construction Control Line CCL
3.
Constriction Control Boundary CCB
4.
Mean Sea Level MSL
5.
Ministerial Regulations Issue 8 (B. E. 2519) MR
8
6.
Ministerial Regulations Issue 8 (B. E. 2519),.. MR
8 – promulgated…
…Promulgated to be in
accordance with
the
Condominium Acts B. E. 2479
7.
Ministerial Regulations Issue 9 (B. E. 2521) MR
9
8.
Ministerial Regulations Issue 9 (B. E. 2521),.. MR
9 – promulgated…
…Promulgated to be in
accordance with
the
Condominium Acts B. E. 2479
Ministerial RegulationIssue 9 (B.E. 2521)กฎกระทรวงฉบับที่ 9 (พ.ศ. 2521)Issued under the Building Construction Control Act B.E. 2479ออกตามความในพระราชบัญญัติควบคุมการก่อสร้าง พ.ศ. 2479……………………………………..…By the virtue of the Section 15 of the Building Construction Control Act B.E. 2479, the Ministry of Interior issued the following Ministerial Regulations:อาศัยอำนาจตามความในมาตรา 15 แห่งพระราชบัญญัติควบคุมการก่อสร้าง พ.ศ. 2479 กระทรวงมหาดไทยได้ออกกฎกระทรวงดังต่อไปนี้1. No. 1 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 isto be amended by the followings statement:1. ข้อ 1 ของกฎกระทรวงฉบับที่ 8 ( พ.ศ. 2519) ออกความตามพระราชบัญญัติควบคุมการก่อสร้างพ.ศ. 2479 ให้มีการแก้ไขดังต่อไปนี้“No. 1. This Ministerial Regulation applies within the boundary line of the map. Annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 in the regions of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Khua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521”“ข้อ 1 กฎกระทรวงนี้ให้ใช้บังคับภายในแนวเขตตามแผนที่ท้ายพระราชกฤษฎีกาให้ใช้พระราชบัญญัติควบคุมการก่อสร้างอาคารพุทธศักราช 2479 ในท้องที่ตำบลบางละมุงตำบลหนองปลาไหล ตำบลนาเกลือ และตำบลหนองปรือ อำเภอบางละมุง จังหวัดชลบุรีพ.ศ. 2521”2. No. 3 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 is to be amended by the following statement:2. ข้อ 3 ของกฎกระทรวงฉบับที่ 8 ( พ.ศ. 2519) ออกความตามพระราชบัญญัติควบคุมการก่อสร้างพ.ศ. 2479 ให้มีการแก้ไขดังต่อไปนี้“No 3. To specify the area within the 200 meters measurement from the construction control line see the map. Annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 in the regions of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Khua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521 at the seashore in which the following constructions shall not be built:“ข้อ 3 ให้กำหนดบริเวณภายในระยะ 200 เมตร โดยวัดจากเขตควบคุมการก่อสร้างอาคารตามแผนที่ท้ายพระราชกฤษฎีกา ให้ใช้พระราชบัญญัติควบคุมการก่อสร้างอาคาร พุทธศักราช 2479 ในท้องที่ตำบลบางละมุง ตำบลหนองปลาไหล ตำบลนาเกลือ และตำบลหนองปรืออำเภอบางละมุง จังหวัดชลบุรี พ.ศ. 2521 ด้านริมทะเล เป้นบริเวณซึ่งอาคารชนิดดังต่อไปนี้จะปลูกสร้างขึ้นมิได้1. Place for keeping and selling fuel / สถานที่เก็บและจำหน่ายน้ำมันเชื้อเพลิง1.Theatre / โรงมหรสพ2.Wooden shop / ห้องแถว3.Concrete shop house / ตึกแถว4.Market / ตลาดสด5.Garage or paint shop for car, motorcycle or motor boat / โรงซ่อมหรือโรงพ่นสีรถยนต์จักรยานยนต์ หรือเรือยนต์6.Warehouse / โรงเก็บสินค้า7.Building of 14 meters higher than road level / อาคารที่มีความสูงจากระดับถนนเกิน 14 เมตร ”The Ministerial Regulation is hereby given on the date of twenty-third of November B.E. 2521 (1978).กฎกระทรวงฉบับนี้ให้ไว้ ณ วันที่ 23 พฤศจิกายน พ.ศ. 2521General Lek Naewmalee / พลเอก เล็ก แนวมาลีMinister of Interior / รัฐมนตรีว่าการกระทรวงมหาดไทย(Mr. Somchai Leelaprapaporn / นายสมชาย ล.)Civil Engineer Grade 7 / เจ้าหน้าที่โยธาระดับ 7Note: The reason issuing this Ministerial Regulation due to the updating of the construction control areas (zone) in Tambol Bang Lamung, Tambol Na Khua and Tambol Nhong Prue, by extending the construction restriction areas as appeared in the map annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 controlling over the regions of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521. It is, therefore, appropriate to amend the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 governing restriction of the construction of some kinds of building within the controlling areas under the aforesaid Royal Decree.หมายเหตุ : เหตุผลในการประกาศใช้กฎกระทรวงฉบับนี้ คือ เนื่องจากได้มีการปรับปรุงเขตควบคุมการก่อสร้างอาคารในท้องที่ตำบลบางละมุง ตำบลนาเกลือ และตำบลหนองปรือ อำเภอบางละมุง โดยขยายให้กว้างออกไปกว่าเดิม ตามที่ปรากฏในแผนที่ท้ายพระราชกฤษฎีกาให้ ใช้พระราชบัญญัติควบคุมการก่อสร้างอาคารพุทธศักราช 2479 ในท้องที่ตำบลบางละมุง ตำบลหนองปลาไหล ตำบลนาเกลือ ตำบลหนองปรือ อำเภอบางละมุง จังหวัดชลบุรี พ.ศ. 2521 สมควรแก้ไขกฎกระทรวง ฉบับ 8 (พ.ศ. 2519) ออกตามความในพระราชบัญญัติควบคุมการก่อสร้างอาคาร พุทธศักราช 2479 ว่าด้วยการห้ามมิให้ปลูกสร้างอาคารบางชนิดภายในแนวเขตควบคุมการก่อสร้างอาคารตามพระราชกฤษฎีกาฉบับดังกล่าวนี้เพื่อให้สอดคล้องและเหมาะสมยิ่งขึ้น จึงจำเป็นต้องออกกฎกระทรวงนี้Copy taken from the Government Gazette No. 95 Section 157 dated 31 December 2521 (1978)ถ่ายสำเนาจากราชกิจจานุเบกษา เล่มที่ 95 มาตรา 157 ฉบับวันที่ 31 ธันวาคม พ.ศ. 2521Certified correct / สำเนาถูกต้อง(Mr. Yuthana Rittisit / นาย ยุทธนา ร.)Administrative Officer / เจ้าหน้าที่ฝ่ายปกครองPublic Utility Section / หน่วยควบคุมสาธารณูปโภค
