Objection to the Pleas Number of Black Case: 1837 / 2553
GARUDA
Central Administrative Court
20 June 2011
Stop Global Warming # 1 and 61 Associates of 61 Litigants
vs.
Mayor of Pattaya City Hall # 1
Chonburi Governor # 2 Plaint Receivers
I, hereby, Mr. Srisuwan Janya, in the capacity of the President of Stop Global Warming Association which is 1st Litigant and the Appointed Person of 2nd – 17th Litigants including Mrs. Apisorn Yangpreeda who is 4th Litigant who also is the Appointed Person of 18th – 61th Litigants,
Address No 51 /119 Moo 9, Preuksa 17 Villas, Klong 3, Ladsawai Sub-district, Lamlukga District, Patumthani province, Zip code: 12150, Mobile: 081 – 920 5066, Fax: 02 – 152 8469.
In this case, the Plaint Receivers have submitted their Pleas to the court and the Litigants received the copies of the Plea as required. The Litigants would like to protest all the Pleas of Plant Receivers with the reasons, law points and evidence as follow;
Before clarifying the Protest of Litigants against the Pleas of both Plaint Receivers however, please allow the Litigants to explain that the Litigants have never intended to interfere the development or growth or civilization of Pattaya City or the other cities that located by the sea whatsoever, and have never had any personal disputation with the Plaint Receivers and the investor of the Disputed Project whatsoever. The Protest against the decisions of both Plaint Receivers from enforcing of Administrative Authorities therein has been filed because the areas by the seas in the whole country should have been the protected areas in both physical and environmental conditions from Visual Pollution and Pollutions and NOT to allow all types of pollution to exceed the maximum tolerating limit of each area for the sake of forever Sustainable tourism and attractions for the benefit of people and NOT to allow the Administrative authorities to take advantage of law interpretation which is the hole of every law to benefit the major private investors by manipulating the intention of law or making decisions in such the way to be capable to posses the lands by the seas to take further step by constructing high rise buildings as wished without considering the intention of law, the outcome of damages and the long term consequences. It also has disposed of the legal rights of people to be benefited by using these lands to reach the natures, to be delighted beautiful sea view sceneries and the surrounding areas. All have been ruined because the Plaint Receivers and other Administrative authorities allow the high rise buildings to be able to be constructed and the views have been blocked, the mental condition will be damaged for a long time to go. Even though the aforementioned lands are legally possessed by such investors following the Land Code however, but if the Plaint Receivers and / or the Administrative Authorities are allowed to make decisions to issue construction permits for high rise buildings which are taller than limitation of law to be located by the sea in the future, such areas will turn to be the Rundown Areas of High rise buildings or the ruined areas with Visual Pollutions and they will no longer be good locations for tourist attractions. In the long run, the officials who issued the construction permits of such buildings will not step out to take responsibilities as their positions will be termed or transferred or the construction projects will be sold and profit will be shared long before the consequences shows. The remains will be the damages the people have to face which the nature resources will be permanently ruined in those areas. This circumstance will finally become wrong standard, leading to conserving areas intruding and ruining for the areas by the seas all over the country.
The Pleas of both Plaint Receivers did not demonstrate that, in the capacity of Administrative authorities, they made decisions within their authorities and duties limited by law or made decisions by considering the intention of law in every angle but they chose certain parts of law which benefits the investors and they ignored the public benefit which was supposed to be the main concern of administrative authorities at all times of their decision making. The Protest of Litigants against the Pleas of both Plaint Receivers is as follow;
1) 1st Plaint Receiver claimed that the operators of disputed buildings, View Talay
Jomtien Condominium Beach (2002) Ltd and View Talay Jomtien Condominium (1999) Ltd which are the same group completed the requirements of the Condominium Act B.E. 2522 by attaching the EIA Report as required by the National Environment Developing and Conserving Act B.E 2535 when they applied for Construction permits for their projects (Projects 5, 6 and 7) which the Plaint Receivers issued the Construction Licenses for such Projects finally.
In the aforementioned point, 1st Plaint Receiver did not mention or explain about the intention of law which is the disputed point brought up by the Litigants which was the reason of filing the prosecution to court of which the construction permits were issued for many high rise building projects to be constructed too close to the sea and located within the prohibited 200 meter distance of law such as;
1.1) The Kor. Sor. Lor. 27 Floor Type of Building with 101,469 Square meters located on the land title deed No. 104606, 123238 and 1149 (Servitude Land), Tappraya Street, Nongprue Sub-district, Banglamung District, Chonburi province which the Project was named View Talay Jomtien Beach Condominium (Project 7),
1.2) The Kor. Sor. Lor. over 22 Floor Type of Building located near Project 7
named View Talay Jomtien Beach Condominium (Project 5) and,
1.3) The Kor. Sor. Lor. over 20 Floor Type of Building named View Talay Pattaya Beach Condominium (Project 6).
All 3 aforementioned projects are the buildings higher than limitation of the Condominium Act or Building Control laws as they are located in the areas fixed to be Reserved area from the sea which can be flooded by sea water especially the Interior
Ministerial Regulations Issue 9 (B.E. 2521) dated November 23th, 2521 (1978) promulgated to be in accordance with the Construction Control Act B.E. 2479 fixing the area within 200 meters, measuring from the Construction Control Line shown in the Annexed map of Royal Decree stipulating to enforce the Construction Control Act B.E. 2479 over the regions of Banglamung, Nongplalai, Nongprue and Naklua Sub-districts of Banglamung District, Chonburi Province B.E. 2521, on the seasides, to be the Prohibited areas for, (8) Buildings over 14 meter high from road surfaces which the aforementioned Regulations was issued to be enforced and replaced the Ministry Regulations Issue 8 (2519) promulgated to be in accordance with the Construction Control Act BE. 2479 which used to prohibit certain types of construction within the Construction Control Line as shown in the aforementioned Royal Decree which fixed the area within 100 meters, measuring from the Construction Control Line shown in the Annexed map of Royal Decree which stipulating to enforce the Construction Control Act BE. 2479 over the regions of Banglamung, Nongplalai, Nongprue and Naklua Sub-districts of Banglamung District, Chonburi Province B.E. 2499, on the Seaside, to be the Prohibited area for, (8) Buildings over 14 meter high from road surfaces.
The intention of amending the aforementioned Regulations by extending the Reserved Area” from 100 meters to 200 meters therein was clearly seen to expand the area on the land by the sea to be wider uncovered areas without any high rise buildings which cause Visual Pollution on the aforementioned areas. The word “By the sea” however, by intention of law, means the areas possible be flooded by sea water ONLY and DID NOT MEAN “from the Mean Sea Level” as interpreted by 1st Plaint Receiver. The statement “from the Mean Sea Level” shown in the Survey Report attached with the construction license however, were the statement added without approval by Misconduct which is in violation with the intention of law, as if the government authorities rely on the statement “from the Mean Sea Level” to be used as the standard for issuing construction licenses of buildings those are in violation with limitations of law on the preserved lands, mangrove forests, and muddy beaches which slop down and wide such as Don Hoy Lod, Mangrove Forests, Pru forest or the beaches at the beginning of Thai Gulf, Bang Khun Tian Beaches, Mahachai Beaches, Bang Pu Beaches etc, the operators will certainly be able to receive construction licenses to build high rise buildings in the middle of Mangrove Forests or Don Hoy Lod as the Mean Sea Levels of these areas are located outward in the sea for nearly a kilometer. If it happens like this, won’t all of the national natural sources be ruined as the Mean Sea Levels of many different areas in the whole country on the sides of both Thai Gulf and Andaman Seas are located at outward as far as nearly a Kilometer?
It is shown in the Master Plan or Project Plan of Project 5 (shown in the Attachment No. 3 of the Plea of 1st Plaint Receiver), the building permitted by 1st Plaint Receiver located by the sea within 200 meters (approximately 150 meters only which is 48 + 52 + 50) which is clearly shown to be in violation with the Ministerial Regulations of Interior Issue 9 (B.E. 2521).
It is also shown in the Master Plan or Project Plan of Project 6 (shown in the Attachment No. 6 of the Plea of 1st Plaint Receiver), the building permitted by 1st Plaint Receiver located by the sea within 200 meters (approximately 110 meters only which is 50 + 50 + 10) which is clearly shown to be in violation with the Ministerial Regulations of Interior Issue 9 (B.E. 2521).
It is also shown in the Master Plan or Project Plan of Project 7 (shown in the Attachment No. 9 of the Plea of 1st Plaint Receiver), the building permitted by 1st Plaint Receiver located by the sea within 200 meters (approximately 100 meters only which is 49 + 51) which is clearly shown to be in violation with the Ministerial Regulations of Interior Issue 9 (B.E. 2521).
1st Plaint Receiver also ignored the intention of amending the Ministerial Regulations Issue 8 to be 9 by expanding the Reserved area by the sea from 100 to 200 meters that was because the law intended to conserve the areas on the land by the sea to be uncovered from any type of building which causes Visual Pollution to block the views and sceneries which are supposed to benefit the public. The aforementioned intention was noted in the Minutes of Royal Decree Committee Meeting regarding the aforementioned matter. (May the court be kind subpoena the Minutes of Royal Decree Committee Meeting Considering of Ministerial Regulations Drafting of Issue 9 as mentioned to be used with the consideration of court regarding the intention of such Ministerial Regulations Drafting). As 1st Defendant ignored the intention and the prohibition as mentioned, it led to the authority of Administration using in contrary with or in opposite to the the aforementioned Ministerial Regulations afterward.
2) Before the amendment of Issue 8 to be Issue 9 (B.E. 2521) therein, the intention of issuing such Regulations shown in the attachment of the Regulations that the reason of issuing such Regulations to enforce over the aforementioned areas was because those areas were the tourist attractions of the people which should be protected from certain types of buildings which may cause disturbance and waist products that will ruin environmental conditions afterward, which meant the buildings higher than 14 meters from road surfaces are prohibited in the Reserved areas on land and on the seaside. After the Regulations Issue 8 was replaced by Issue 9 thereby, the intention shown in the attachment of regulations also stated clearly that because the construction control line was needed to be adjusted in the disputed areas , certain types of building would be prohibited to be constructed in the Construction Control Line to be in agreement with and appropriate which still emphasized the original intention of prohibiting the buildings higher than 14 meters from road surfaces and it was in agreement with the announcement which announced these areas to be Pollution and Environment Control Areas of the National Environment Committee following the National Environmental Quality Conserving and Improving Act B.E. 2535 which stated that the areas outside prohibition of constructing of the buildings higher than 14 meters from road surfaces in the 200 meters from the sea side must submit the EIA report with application of building license. The EIA Procedure which claimed by 1st Plaint Receiver that it was approved by the Natural Resources and Environment Planning Office therein, 1st Plaint Receiver did not clarify the information and facts to show the prohibition stated by the aforementioned law to the Natural Resources and Environment Planning Office whatsoever which it could be possible that the office was not aware of such facts and the approval of aforementioned EIA report was given by mistake of not knowing. The other reason was because the aforementioned report was not done correctly as legally required to be in accordance with the Natural Resources and Environment Planning Office B.E. 2535 especially in the step of Public Opinions Survey which fixed that the people and interested persons must be able to express their opinions and it must be done openly and must be publicized widely especially the citizens whose names shown in the local family books of Nongprue Sub-district which as much as 61,992 persons resided in 79,923 houses shown in the statistic of Administrative Database of Pattaya City Hall (excluding the non-registered populations which estimated as much as 400,000 – 500,000 persons) but it has never been any evidence to show that the survey done by the operator was or was not done widely and openly in order to collect the feedbacks of interested persons and people’ opinions in proper fraction of the total numbers especially in Nongprue which was the disputed area and the area protected from all types of pollution and also was the area of environment conservation during the period of time that 1st Plaint Receiver used its administrative authority to issue construction licenses for such projects as mentioned. The Public Survey to collect the people’ and interested persons’ opinions was supposed to be the most important step because it would affect the environment, economic, socialization, and living quality of the people and tourists in every angle but the operator or the obligated Consultant company which completed the EIA Report did not follow the required conditions of law. As both Plaint Receivers, in capacities of the authorities which are responsible for environmental condition control as appointed by the Chonburi Provincial Planning (section 37 of the Natural Resources and Environment Planning Office B.E. 2535) did not object or inspect the aforementioned point clearly in all angles before issuing the construction licenses for the operators, it have caused the pollution level increasing which is in contrary with and in opposite to the Provincial Environmental Management Plan of Chonburi including the Pollution Reduction and Clearing Plan of Pattaya City Hall and Chonburi Province in general. As Pattaya has been known for sea water quality damaging around the shores from the past until present time and it seems to get more serious continuously. From the report of Pollution Control Department (as shown in Attachment No. 1: the copies of Report of Pollution Status of Thailand B.E. 2547 – 2551). The aforementioned conduct was the reason the people and interested persons including the tourists gathered top protest against the decision of 1st Plaint Receiver at Pattaya City Hall after 1st Plaint Receiver used its authority illegally, as the people deemed that such conduct could be considered to be done with the reason to cooperate with the operators which the outcome of such conduct is clearly shown to be in the way of ruining of beneficial rights of people in using natural resources and environment in the area. Such conducts of both Plaint Receivers are in considered to be wrongful to the Public Rights which truly conducted without involving the participation of people or interested persons.
3) The Plea of both Plaint Receivers claimed to use the Black Case No. 54/ 2550 of Rayong Administrative Court however, as acknowledged by the Litigants therein, such case is still pending on the consideration of the Supreme Administrative Court and yet has not reached the final decision. The Plea of the Plaint Receivers are not capable to claim in a way to be over the authority of Supreme Administrative Court whatsoever. The order of Rayong Administrative Court which appointed the Department of Civil Engineer and City Planning to make inspection and to give its report also could not be considered to be the final justification of the intention of law as if the court prepared to listen to the Department of Civil Engineer and City Planning on the only side without listening to the opinions of other related authorities i.e. Ministry of Natural Resources and Environment, Department of Sea Resources and Shores, Marine Department, the Royal Thai Navy, Royal Decree Committee etc to cover all angles thereby, it may lead to natural resources distraction along the shore or beach areas of the whole country as it means the government authorities in the whole country can use the same standard procedure to perform their duties. In the aforementioned case however, the Litigants believe that the Supreme Administrative Court will use the standard of listening to surrounding opinions and the explanations including standard procedures and philosophies of all interested authorities and NOT only listening to the information submitted by the Civil Engineer and City Planning Department on the only side. As for the disagreement between the Litigants and the Plaint Receivers in this case, the Litigants are not able to be convinced by the philosophy of both Plaint Receivers using the measurement of 200 meters as fixed by the Ministerial Regulations Issue 9 (B.E. 2521) to be claimed that the measurement outward into the sea for 100 meters is involved in the procedure of finding the Construction Control Line by the meaning of Ministerial Regulations Issue 9 as mentioned. If it was supposed to be measure in such a way, could it be that any types of buildings are possible to be allowed to be constructed outside the measurements of 100 meters outward into the sea until reaching the edge of 120 sea miles of the territory of Thailand’s Seas? The philosophy or reason claimed by the Civil Engineer and City Planning Department which was used and claimed by 1st Plaint Receiver is not reasonable. Therefore, the intention of changing the Issue 8 to use the Issue 9 and to expand or extend the distance from the sea from 100 meters to 200 meters should be brought up to consideration. Persons with proper consciences or right minds will understand the intention of law in the similar way that the measurement is to be started at the shore measuring inward onto the land for 200 meters ONLY and NOT to measure from the Mean Sea Level at 0.00 meter outward 100 meters into the sea before measuring inward toward the land for another 100 meters and add them together as reported which is not reasonable and does not match the intention of law whatsoever. This ignorant kind of answer can ONLY be used by the ignorant persons who tries to help the associates or the group to be able to sneak out of responsibilities to be able to do so. From the aforementioned point, the Litigants would like to advised the court to proceed Facts Finding following the intention of fixing the aforementioned line from the related authorities as mentioned above and including the Subpoena of the aforementioned Minutes of Ministerial Regulations Issue 9 Drafting Meeting from the Royal Decree Committee to be used in consideration of court to be able to understand the intention of drafting the aforementioned Regulations for the sake of justice.
As stated in the reasons, intention and law points as above, may the court be so kind give the judgment in the agreed direction to the Requests of the Litigants to be the clear president standard for the whole country to conserve the rich environmental conditions of tourist attractions and natural resources for the future of the nation.
Faithfully Yours,
Mr. Srisuwan Janya
President of Stop Global Warming Association
In capacity of 1st Litigant and Appointed Person of 2nd– 61st Litigants,
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Filed
Petition Number of Black Case: / 2010
Central Administrative Court
23 November 2010
Stop Global Warming Association with the associates of 61 Litigants
Between
Pattaya City Hall Official # 1 Plaint
Chonburi Provincial Governor # 2 Receivers
I, hereby: the Stop Global Warming Association by its Director Mr. Srisuwan Janya, in capacity of the 1st Litigant and the Appointed Person of 2nd – 17th Litigants and Mrs. Apisorn yangpreeda: 4th Litigant and the Appointed Person of the 18th – 61st Litigants,
Resided at 51 /119 Moo 9, Preuksa 17 Villas, Klong 3, Ladsawai
Sub- district, Lamlukga District, Patumthani province, Zip code: 12150, Mobile: 081 – 920 5066, Fax: 02 – 152 8469
Would like to prosecute the Plaint Receivers by the following clarification:
1) Pattaya City Hall Local Official, address: Pattaya City Hall, North
Pattaya Road, Nongprue Sub- district, Banglamung, Chonburi, 20150
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2) Chonburi Provincial Governor, at the Central Hall of Chonburi Province, Montasewee Street, Bangplasoy Sub-district, Muang District, Chonburi Province, 20000
Status of the 1st Litigant
1st Litigant is a private organization specialized on environment protection and natural source preservation, legally registered as a juristic person under the name Stop Global Warming Association, Registration No. Jor. 4629 / 2007, “Mr. Srisuwan Janya” is the Director and established with the purpose to ensure the rights of people in environment protection and natural source preservation management to be in favor and be preserved for long run including to be in balance with the Ecosystem etc as empowered by the Constitution as shown in the Attachment 1. As 1st Litigant is a Public Private Organization which works with the purposes of environment protection and natural source preservation including community rights preservation following the Constitution and relevant laws which have been the main intentions of the Litigant whether what status of people or community or which are of the country.
However, the Litigant also was verified to be the Public Private Organization fort environment protection and natural source preservation on February 27th, 2009 (B.E. 2552), Registration No. 4 / 2009 which was in accord with Section 7 and 8 of the Environment Promotional and Preservation Act B.E. 2535 ( 1992) as shown in the Attachment 2: Copy of Registration document.
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Litigant # 1 is the interested person and received various complaints and requests from the Litigants and people in community to assist in entering an Administrative Case to protect and preserve the rights which empowered by the Constitution B.E. 2550 ( 2008) which the Plaint Receiver as a government authority issued rules and regulations illegally, did not proceed as stipulated in the Constitution B.E. 2550 ( 2008), did not proceed as stipulated in the Condominium Act B.E. 2522 ( 1979) and the Environment Promotional and Preservation Act B.E. 2535 ( 1992) including the other relevant laws.
The complaints and requests of people and the Appointed Person of the Litigants which were sent to the Association were combined as the Litigant # 1 as shown in the Attachment 3: Copy of complaints of people or interested persons, dated March 18th, 2010 and which was in accordance with Clause 4 of Association Regulations governing objectives of the association specified authority and duty as
1) To follow, Inspect the sources of pollution which cause global warming and damage to individuals, animals, plants, properties, natural sources and environment
2) To distribute legal education regarding pollution and environment to public or the people whom are in risk to be endangered and damaged by pollution created from the sources including to be an Appointed Person to proceed legal procedures to request for compensation on behalf of the people, community and public.
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3) To preserve the rights and duties of people in operating the environment and natural sources for the best benefit that balanced with the Ecosystem for a long time as stipulated in the Constitution
4) To encourage social to realize the problem and effect of depreciation of natural sources and environment in both city and countryside and for the people to help preserving the Jungle, water, rivers and animals.
5) To encourage the socials to establish the Sea and Shore natural sources Preservation Networks to protect the area by the ocean, sea wheat, coral and marine lives.
6) To promote the education of environmental and pollution management, energy preservation, environmental care, health care plan, consumer protection, social security management, labor protection and clean technology to the youth and public
7) To provide or assist in educational service, research, training, advising, environmental report and evaluation to both government and private sectors
8) To cooperate with other authority and organization in and outside the country which established by the similar objective to complete the purpose of the association
as shown in the Attachment 1,
Which the association, in capacity of the private sector which specialized in environmental protection and natural source preservation is not able to tolerate the act or performance of both Plaint Receivers, therefore it has to ask for justice from the court and,
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2nd Litigant is a juristic person in the type of condominium under the Condominium Act B.E. 2522. Registration No. 4 / 2536 called Jomthien Complex Condotel Juristic Person which is the condominium that follow the stipulations of law and sets a good sample by being located outside the 200 meters from the seashore as stipulated by law.
3rd – 61 Litigants are Thai nationalities, Races: Thais who hold the rights and freedom preserved and protected by the provisions of Section 71 and 73 of the Constitution B.E. 2550 (2008), duties clarified to preserve national benefits, follow the laws, preserve and protect environment and natural sources including be given the rights to request government officials, sectors or other stages to perform in accordance with the law in order to preserve public benefit to be pursuant with the good Administrative Principles
Status of Plaint Receivers
1st Plaint Receiver is a local government authority in the form of Special local Administration, empowered by Pattaya Administrative Act B.E. 2521 (1978) to manage the city of Pattaya to be in accordance with the law especially the matters regarding environmental and natural sources preservation and promotion, city planning laws, construction control and building control law etc, or to perform other duties as specified by law as the duties of city municipality or of Pattaya City.
2nd Plaint Receiver is an official under the Administration Department of Ministry of the Interior which is the regional administrative authority, empowered by the National Administration Regulations B.E. 2534 and the Amendment Issues and also was appointed by the National Environment Committee or the Ministry of Natural Sources and Environment to conduct the Page 6:
duty of the Chairman of Expert Committee in all considerations regarding to approval or rejection of the environmental impact report of the Environmental Impact Assessment (EIA) which initiates projects or activities in the province, as stipulated by the Environment Committee as well. Therefore 2nd Plaint Receiver was in authorized and obligated by the National Administration Regulations B.E. 2534 and the National Environmental Preservation and Promotion Act B.E. 2535 (1992) at the same time.
All performances which are the origins of the prosecution including the facts or circumstances as seen related to the aforementioned performances are as follow;
1) As because 1st Plaint Receiver, in the capacity of an Administrative
Government Authority performed its duty inappropriately by issuing or giving permission to a private sector registered under the name “View Talay Jomtien Condominium (1999) Co., Ltd” to construct many permanent type high rise buildings which located close to the shore more than stipulated by law which left the “Move Back Reserved Area” less than 200 meters such as the Kor. Sor. Lor. Classed building consists of 27 floors, space: 101, 469 square meters which located on the land title deed No. 104606, 123238 and 1149 (Servitude land) Nongprue, Banglamung Chonburi using the name “View Thalay Beach Condominium (Project 7), the Kor. Sor. Lor. Classed building consists of more than 21 floors which is close to each other called “View Talay Jomtien Beach Condominium (Project 5) and the Kor. Sor. Lor. Classed building consists of more than 20 floors called “View Talay Pattaya Beach Condominium (Project 6) which each building is higher than the stipulations of Construction Control Laws and located in the reserved area of the “Move Back Distance” from the
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area that could be flooded by sea water or the seashore area including the EIA Report Survey which was not done correctly to be in agreement with the legal stipulations of pattern and step by being in violation with the “Public Rights” which was done without the participation of people or the interested persons truly.
The performances of the Plaint Receivers damaged the Litigants, population or Interested persons. It has created problems with pollution and “Visual Pollution” which has ruined the tourist attraction sceneries even though the aforementioned area is the tourist attraction which needed to be under extra rules and regulations restricted more than the other areas which all types of prohibited constructions must not be allowed to cause damage, disturbance, waste products and environmental depreciation to the area. Apart from that, the pollutions such as loud noise and dust were caused while the building was constructed all the time. Until the building was completes and started operating, the pollution was still created from wasted water which drained into the public sea until it caused bad sea water. Many Litigants and tourists had skin dermatitis allergies and the building is built on top of the former water routes or blocks the natural water way which was useful to drain water when the water gets high in the old days completely as well.
It is because in the previous time, the National Environmental Committee which empowered by the National Environmental Preservation and Promotion B.E. 2535 (1992) used to promulgate 1st Declaration (B.E. 2535), Dated August 7th, 2535 (1992) which stipulated Pattaya areas to be the pollution control area (as announced in the Government Gazette Book 109, Part 110, Dated September 3rd, 2535 / 1992) because it deemed that all types of operations i.e. industrial, hotel and tourist attraction, restaurant, medical
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clinic or station etc, all would create pollution and cause environmental impact for Pattaya seriously. It would be as severe as could destroy health conditions of the people in the future to be able to take control, reduce and get rid of pollution in the future.
It is also shown in the Royal Decree promulgated to enforce the Construction Control Act BE. 2479 over the regions of Banglamung, Nongplalai, Nongprue and Naklua Sub-districts of Banglamung District, Chonburi Province BE. 2521 (1978) effected since January 1st, 2552 (2009) and on, and the Interior Ministry Regulations Issue 9 (2521) dated November 23th, 2521 (1978) promulgated to enforce the Construction Control Act BE. 2479 to fix the area within the distance 200 meters, measured from the Construction Control Line as shown in the Annexed map of Royal Decree which stipulated to enforce the Construction Control Act BE. 2479 over the regions of Banglamung, Nongplalai, Nongprue and Naklua Sub-districts of Banglamung District, Chonburi Province BE. 2521, on the Seaside, to be the Prohibited area for following types of constructions, (8) over 14 meter tall constructions from road surface which the aforementioned Regulations was issued to amend the Ministry Regulations Issue 8 (2519) promulgated to be in accordance with the Construction Control Act BE. 2479 governing the prohibition for certain types of constructions within the Construction Control Area to be in agreement with the aforementioned Royal Decree which fixed the area within distance of 100 meters, measured
from the Construction Control Line as shown in the Annexed map of Royal Decree which stipulated to enforce the Construction Control Act BE. 2479 over the regions of Banglamung, Nongplalai, Nongprue and Naklua Sub-districts of Banglamung District, Chonburi Province BE. 2521, the Seaside, to be the Prohibited area for following types of constructions, (8) over 14 meter tall constructions from road surface.
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The intention of amending the aforementioned Regulations by adding the “Move Back Reserved Area” from 100 meters to 200 meters was clearly seen to prevent the aforementioned area from the buildings which are taller than which stipulated by law which will create “Visual Pollution” which will definitely destroy the tourist destinations. The aforementioned area has been preserved to be tourist attraction which needed to be restricted on pollution control than the other areas by prohibiting certain types of construction which deemed to cause disturbance and wasted products and which would ruin the environmental condition completely.
Even though later on, the Construction Control Act B.E. 2522 (1979) was promulgated to be enforced instead of the Construction Control Act B.E. 2479 since May 14th, 2522 (1979) however, but Section 79 of the Construction Control Act B.E. 2522 (1979) stipulated that all ministerial regulations, local provisions, provincial provisions, rules, regulations, announcements or orders which empowered by the Construction Control Act BE. 2479 or the Construction Control in Conflagrated Area Act B.E. 2476 (1933) will still enforcable as long as not in disagreement with the aforementioned Act. In Section 80, it is stipulated that the area that already had the Royal Decree to enforce the Construction Control Act B.E. 2479 or the Construction Control in Conflagrated Area Act B.E. 2476 (1933) before this Act was promulgated to be enforced, it was considered to already have the Royal Decree for this area. Therefore, the Royal Degree, enforcing the Construction Control Act BE. 2479 over the regions of Banglamung, Nongplalai, Nongprue and Naklua Sub-districts of Banglamung District, Chonburi Province BE. 2521 and enforced since January 1st, 2522 by the Ministerial Regulations Issue 9 (B.E. 2521) dated November 23rd, 2521 which promulgated to be in accordance with the
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Construction Control Act B.E. 2479 to still be enforceable until the present time.
But the intention of the aforementioned Act, Royal Decree and Ministerial Regulations have not been followed strictly by Pattaya Local Officials and 2nd Plaint Receiver. 1st Plaint Receiver gave an Administrative Order to allow a private operator called View Talay Jomtien Condominium (1999) Co., Ltd which resided at 315 / 187 Thappraya Road, Nongprue, Banglamung, Chonburi to construct numbers of high rise buildings in the area close to each other such as the “View Talay Jomtien Beach Condominium (Project 7) which is the permanent type Kor. Sor. Lor. Class building, consists of 27 floors (with Roof Terrace), numbers of building: 1, Numbers of unit: 912, Numbers of commercial shops: 24, Parking space: 11,708 square meters, vehicle capacity: 418, space: 101, 469 square meters which located on the land title deed No. 104606, 123238 and 1149 (Servitude land) Nongprue, Banglamung Chonburi for residential purpose, on the area which is clearly stated to be prohibited as shown in the Attachment 4: Copy of construction / modification or demolition license No. 162 / 2550, dated November 28th, 2549 which the Litigants managed to find to submit to court for court consideration. Apart from that, there are more projects of the aforementioned operators built in the same area (Project 5 and Project 6) which was permitted to be constructed even though they are the high rise buildings built too close to the sea then the stipulation of law allowed but the documents are unable to be found for court consideration (may the court subpoena it from 1st Plaint Receiver). The aforementioned performance of 1st Plaint Receiver was in the way of misconduct of the stage officials or Administrative officials by performing illegal conduct, unlawful or using illegal consideration.
The act of the operator and 1st Plaint Receiver by allowing the project to be built even though it was unlawful, it is considered that the order given by 1st
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Plaint Receiver was not acceptable in people’s considerations in the aforementioned area. It happened to be the reason to force the residents, people who treasure the justice or interested persons or tourists tried to protest the aforementioned order or performance of the operator continuously by showing the objection signs, walking to protest and gathering to protest, both on the disputed land and by walking to the Pattaya City Hall which shown in the local media newspaper as shown in Attachment 5. 1st Plaint Receiver did not care but kept denying the rights and freedom of the requests of people as mentioned and neglected the right to be involved of people as stipulated and protected by Section 46, 56, 60, 76 and 79 of the Royal Thai Constitution B.E. 2540 or in Section 3 of the Royal Thai Constitution (Temporary) B.E. 2549 and Section 56, 59, 66, 67, 78 and 87 of the Royal Thai Constitution B.E. 2550.
Apart from that, the behavior or circumstance of performance of 1st Plaint Receiver was also in violation with Section 3/1 of “the National Administration Regulations Act” (Issue 5) B.E. 2545 which stipulated that... “The administration to be in accordance with this Act must be done for the benefit of people, for the completion of stage project, for effectiveness, for the worth of stage business, for the less steps of performance, for the less unnecessary procedure and authority, for distribution of authority and sources to locality, for distribution of decision making authority, for convenience and for the response of the people, however, by someone’s responsibility….”
To perform the Administration of government authority, the good administrative Procedures must be used especially concerning the responsibility of the performer, participation of the people, information distribution, performance inspection and evaluation as appropriate to each performance...”.
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The negligence of 1st Plaint Receiver by denying the intention and stipulations of law which already stipulated administrative procedures and steps showed that 1st Plaint Receiver intended to be in violation with or negligence or misconduct to the duty as stipulated by law to be performed obviously.
2) As The National Environment Committee empowered by the Environmental Promotion & Preservation Act B.E. 2535 promulgated in the Declaration Issue 1 (B.E. 2535) dated August 7th, 2535 fixes Pattaya to be the pollution control area by giving the reason in the promulgation that all types of operations i.e. industrial, hotel and tourist attraction, restaurant, medical clinic or station etc, all would create pollution and cause environmental impact for Pattaya seriously. It would be as severe as could destroy health conditions of the people in the future to be able to take control, reduce and get rid of pollution in the future. After the area is promulgated as the pollution control area, the local official must produce “the Pattaya Pollution Reduction & Clearance Plan” to propose to the Chonburi Provincial Governor to be added with the Chonburi Provincial Environmental Control Plan as well (may the court subpoena the aforementioned Pattaya Pollution Reduction & Clearance Plan” and the Chonburi Provincial Environmental Control Plan from 1st or 2nd Plaint Receivers to be used in consideration on enquiry).
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The Pattaya Pollution Reduction & Clearance Plan will be the data base for 1st and 2nd Plaint Receiver to use in consideration to find “the Severance of Pollution Status” at the present time and in the future and the permission should or should not be given to a new pollution creator to be established and how.
Pattaya is the first city to be promulgated as a Pollution Control Area by the Environmental Promotion & Preservation Act B.E. 2535 which shows that the National Environment Committee which is the highest government authority authorized to take control and protect the environment, natural sources, health and living conditions of the people considered that the environmental condition in Pattaya City was starting to be ruined and it was possible to be ruined seriously until causing health problems for the people or environmental condition. This circumstance forced the promulgation to be issued to cover Pattaya City as the Pollution Control Area before the other areas to be able to start with the Pollution Control, Reduction & Clearance Plan immediately.
Apart from the promulgation for the area to be listed as the pollution control area however, later on, the Environment and Natural Source Ministry, by the approval from the Environment and Natural Source Committee with the permission given by the Parliament Assembly deemed that the promulgation along was still not enough to take control, reduce and clear the pollution as Pattaya City consisted of various activities of people which easily affect the environment, the other Ministry Regulations which was the Ministry Regulations regarding the Locations and Environment Protection Procedures in Pattaya City of Chonburi B.E. 2546 (Government Gazette Book: 120, Part: Special 113, Dated September 30th, 2546 (2003) as well for the restriction of pollution and environmental protection in Pattaya. As it happened like that, the authority which worked with environmental condition evaluation and
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report or EIA (Environment Impact Assessment) which means 2nd Plaint Receiver which was in the capacity of the Chairman of the Provincial Expert who must inspect, make consideration, reject or disapprove the environmental impact report or EIA as empowered or stipulated by the National Environmental Committee which must have used its consideration very carefully in Administrative enforcement to grant or refuse to approve (by the agreement of the Committee who were the experts or Kor. Chor. Gor.) as it was the duty and authority stipulated in Section 46 to 51 of the Environmental Promotion & Preservation Act B.E. 2535 especially the consideration on the matter about the “Survey about Opinion Participation of the people who are interested persons” that it had been done correctly or wrongly, how and if it was or was not done following the procedures, method fixed by the National Environment Committee including if it was or was not in agreement with the relevant laws. Otherwise, the Administrative enforcement of its authority might lead to the disagreement or opposition with the intention of the promulgating which fixed the area to be the Pollution and Environment Control Area by law which concerned the Plaint Receivers the most, especially to create a new pollution area however, the consideration must have been made that if this disputed project was or was not already included in the “the Pattaya Pollution Reduction & Clearance Plan” to be able to survey, evaluate and estimate the pollution in general aspect including the level of impact and the effect to the environment, to be able to make decision toward all procedures which planned to be used with the problem that if they were or were not suitable and necessary for the pollution reduction and clearance plan in Pattaya City and how. Nevertheless, in the aforementioned point, the operator under the name “View Talay Jomtien Condominium (1999) Co., Ltd
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which applied to construct the permanent type high rise building, consists of many floors because it is too close to the sea more than what law stipulates without conducting the “Survey for the opinions of people who are interested persons” correctly by principles or steps as stipulated by law and there was never been any proof that the aforementioned project is listed in the “Pattaya Pollution Reduction & Clearance Plan” before the permission was given by 1st Plaint Receiver. Therefore, the performance of 2nd Plaint Receiver or the Kor.Chor.Gor. Committee which 2nd Plaint Receiver was the Chairman by position and which 2nd Plaint Receiver was involved in consideration of the EIA Report used its Administrative enforcement in proceeding or considering all information which was not complete to be the guideline for considering approving the EIA report regarding the disputed project without questioning or advising for the proceeding to be done following the law. It is clearly shown that 2nd Plaint Receiver intended to neglect the commitment by law or to commit a wrongful performance by allowing the involved under controlled officials to approve the report illegally even though by the normal circumstance however, 2nd Plaint Receiver could use its authority to inspect or request for the aforementioned information to consider or question or to advise, for the consideration of the Committee to be given either to approve or reject the disputed project before continuing.
3) Currently, pollution is seriously effecting and changing quality of the
weather worldwide which the nationwide cooperates in solving this problem seriously. In B.E. 2533 (1990), a report was given by the “Inter Government Panel on Climate Change (IPCC)” which was the organization which supported scientific information for Changed Global Weather Management specified that
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the ice burgs started melting and it water in the ocean started rising up. Thailand was alarmed by the report as well and the Master National Plan was drawn up to deal with this problem. Therefore, the national plan and policy, all were drown to protect, preserve the scenery, environment and natural sources. The result of air quality changing which called “Global Warming” was come from the main cause which are pollution and toxication created by human and it caused ice burgs melting in North and South Poles and on top of high mountains. The water level in the ocean started rising up rapidly which by Meteorology, it will cause the change of “mean sea level” faster than it is supposed to be continuously every year, as shown in the Attachment No. 6: Copy of Graph . As for Thailand, the Measurement at “Lak Island” of Prachuab Kirikan province has been stipulated to be done every 5 years to measure at this area and then find the average value to find the Mean Sea Level at 0.000 meter which has affected many provisions of law in Thailand that used “Mean Sea Level” as the Standard value in Administrative Management. The effect of Global Warming has increasing the value of Mean Sea Level every year. Therefore, the Administrative government authorities must be extra careful in issuing all types of project or activity which relating to the legal conditions that relating to the Mean Sea Level as it would affect the rest of beach areas of the
whole country which the sceneries are in risk to be changed to be unpleasant sceneries by tall buildings built too close to the sea which are in violation with the laws such as “Don Hoi Lord” of Samut Songkram province, “Kung Graben Bay” of Chantaburi province and “Sam Roy Yod Mountain” in Prachaub Kirikan province including many main tourist attractions as the Phuket Island, Samui
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Island, Cha Am Beach, Hua Hin Beach etc. If the Administrative authority commits its duty with negligence or understands the facts but intends to ignore the enforcement of law or uses inappropriate and incorrect consideration, the consideration given will become the performance in violation with the law and the facts and will create problems for the future just like what happened in this disputation. Therefore, the performance of 2nd Plaint Receiver which approved the EIA report and 1st Plaint Receiver allowed or permitted the “View Talay Jomtien Beach Condominium or View Talay Pattaya Beach Condominium (Project 7, Project 6, Project 5) of View Talay Jomtien Condominium (1999) Co., Ltd which are taller than stipulation of law to be constructed in the control area which is prohibited by law, is considered that both Plaint Receivers performed their duties inappropriately which is considered to use their authorities illegally in the approval / permission included incorrect by legal steps.
As shown in the facts and law stipulations above, the Litigants had tried to complain and request 1st Plaint Receiver and relevant authorities to reconsider the causes and results which is the “Principle” of the aforementioned permit as shown in the letter of complaint of 1st Litigant dated April 1st, 2553 (2010) as shown in the Attachment No. 7: Copy of letter to request the relevant Administrative Authorities to revoke the permission of the 27 floor View Talay Jomtien Condominium (1999) to be in accordance with law stipulations especially the aforementioned area which is the area with the distance of 200 meters from the shore which is the prohibited area by law. The Plaint Receiver however, did not reconsider or listen or care to solve the aforementioned problem whatsoever.
As 1st and 2nd Plaint Receivers which are government authorities and Page 18:
Administrative authorities perform misconduct which is considered that they used their considerations illegally and ignored their duties obligated by to be followed by law, 1st – 61st Litigants, in capacity of the Interested Persons would like to use the Legal Rights empowered by the Royal Thai Constitution to prosecute the 2 Plaint Receivers for the Administrative Court to give an order or a verdict as requested by the Litigants in the future.
And as this prosecution is for the public benefit protection which affects the interests and benefits of people, environment, natural sources and nation in general and will be the standard for all relevant local Administrative authorities to be used as guideline to perform correct Administrative procedures in environment and scenery protection in pollution control area, environmental preservation are and beach areas which are tourist attractions in the future, the Litigants therefore, are acting on behalf of a lot of damaged persons as stated and explained above to request the court to consider giving an order or request as requested by the Litigants to preserve effectiveness and holiness of the law to be enforceable in the long run.
Attached Requests
1) May the court give a verdict or an order for 1st Plaint Receiver to revoke the Construction License of View Talay Jomtien Beach Condominium and / or the View Talay Pattaya Beach Condominium (Project 7, Project 6, Project 5) of View Talay Jomtien Condominium (1999) Co., Ltd which are taller than 14 floors permanently and which are built too close to the sea within the 200 meters and in violation with the stipulation of law located in Nongprus Sub-district, Banglamung District, Chonburi province for the parts of buildings which are illegal to be demolished.
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2) May the court give a verdict or an order for 2nd Plaint Receiver to revoke the Environmental Impact Report (EIA) of View Talay Jomtien Beach Condominium and / or the View Talay Pattaya Beach Condominium (Project 7, Project 6, Project 5) of View Talay Jomtien Condominium (1999) Co., Ltd.
Kuan Mi Kuan Laew Dtair Ja Proed
……………………………………………………
( Mr. Srisuwan Janya )
Director of Stop Global Warming Association
In Capacity of 1st Litigant and Appointed Person of 2nd – 61st Litigants
……………………………………………………
(Mrs. Apisorn
4th Litigant and Appointed Person of 18th - 61st Litigants
