Jomtien Condo Owners Sue For Sea View

[stopvt7]

Oh dear tryimg to impose Western planning standards in Thailand again. Well certainly planning controls need to be improved but it will not happen overnight and I suspect most certainly not in this case. It is still "buyer beware". A little naive to buy a condo 200 mtrs from the sea and expect no building to block their view in the future.

Anyway how did they measure 200 mtrs from the sea ?, low tide or high tide ? or just an elastic tape ?

I’m Richard Haines who organized the co-owners at Jomthien Complex Condotel to take legal action against VT7 to stop construction.

The 200 meters from high tide law is that you can not build over 14 meters high. For more info of this group of 10 go to http://stopvt7.blogspot.com/

This regulation was issued for city planning to follow. No one ever tried to enforce this law in Thailand . Administrative Court is a new court formed in 1999 to fight corruption in government. See below and got to http://stopvt7.blogspot.com/ and read the case which was filed. They have a good legal team to represent them. See the Ministerial Regulation below.

Ministerial Regulation Issue 9 (B.E. 2521)

Issued under the Building Construction Control Act B.E. 2479

By the virtue of the Section 15 of the Building Construction Control Act B.E. 2479, te Ministry of Interior issued the following Ministerial Regulations:

1. No. 1 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 to be amended by the followings statement:

“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. 2520”

2. No. 3 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 to be amended by the following statement:

“No 3. Setting of 200 meters measured from 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 seaside in which the following constructions shall not be built:

Building of 14 meters higher than road level.

The Ministerial Regulation is hereby given on the date of twenty-third of November B.E. 2521 (1978).

General Lek Naewmalee

Minister of Interior

(Mr. Somchai Leelaprapaporn)

Civil Engineer Grade 7

Note: The reason issuing this Ministerial Regulation due to the updating of the construction control areas 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.

Copy taken from the Government Gazette No. 95 Section 157 dated 31 December 2521 (1978)

[Tammi]

Oh dear tryimg to impose Western planning standards in Thailand again. Well certainly planning controls need to be improved but it will not happen overnight and I suspect most certainly not in this case. It is still "buyer beware". A little naive to buy a condo 200 mtrs from the sea and expect no building to block their view in the future.

Anyway how did they measure 200 mtrs from the sea ?, low tide or high tide ? or just an elastic tape ?

I’m Richard Haines who organized the co-owners at Jomthien Complex Condotel to take legal action against VT7 to stop construction.

The 200 meters from high tide law is that you can not build over 14 meters high. For more info of this group of 10 go to http://stopvt7.blogspot.com/

This regulation was issued for city planning to follow. No one ever tried to enforce this law in Thailand . Administrative Court is a new court formed in 1999 to fight corruption in government. See below and got to http://stopvt7.blogspot.com/ and read the case which was filed. They have a good legal team to represent them. See the Ministerial Regulation below.

Ministerial Regulation Issue 9 (B.E. 2521)

Issued under the Building Construction Control Act B.E. 2479

By the virtue of the Section 15 of the Building Construction Control Act B.E. 2479, te Ministry of Interior issued the following Ministerial Regulations:

1. No. 1 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 to be amended by the followings statement:

“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. 2520”

2. No. 3 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 to be amended by the following statement:

“No 3. Setting of 200 meters measured from 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 seaside in which the following constructions shall not be built:

Building of 14 meters higher than road level.

The Ministerial Regulation is hereby given on the date of twenty-third of November B.E. 2521 (1978).

General Lek Naewmalee

Minister of Interior

(Mr. Somchai Leelaprapaporn)

Civil Engineer Grade 7

Note: The reason issuing this Ministerial Regulation due to the updating of the construction control areas 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.

Copy taken from the Government Gazette No. 95 Section 157 dated 31 December 2521 (1978)

Does this mean that VT will have to take down the building behind Avalon Hotel on Dongtan Beach? And that developer can not build 8 storeys on site at Jomthien Condotel?

[stopvt7]

Today about 4:00 I received a phone call from Markus Klemm. He told me that Asia LawWorks had received a fax from Administrative Court in Rayon.

Congratulation we receive a decision and won an injunction for VT7 to STOP WORKING on their 27 story condo. This is not the final but we on are way to receive one which will limit construction to 14 meters or about a 3 stories tall building.

It's was a great day for all of Thailand, the Thai People and the farangs. Thailand is a strong nation with laws which give far treatment to all. Now I'm smiling with a great big beaming grin. Thinking of all the farang which said we did not have much change to win a court decision. What a great day to give thanks!

Edited April 9, 2007 by stopvt7

[gharknes]

well done chaps, congrates to the courts for upholding the law and disregarding power and money, i'm sure that these giant buildings are not total thai projects......................keep us up to date on things as they progress

there will be some very unhappy people that have already invested big money on this project....take care.

[Irene]

Folks,

Congratulations to those involved!!! It is good for all of us to know that Thailand has a rule of law and sense of justice!!! May you all win the case in the end!!!

[ZZZ]

Well done, hope that is the final decision.

Wonder what else will happen then? That planned 91 story Ocean 1 building is also within the 200m limit as far as I can recall, probably plenty of others as well Sails, Ocean Marina.....

[bangkapiboy]

So can anyone confirm that construction has stopped?

[Tammi]

Today about 4:00 I received a phone call from Markus Klemm. He told me that Asia LawWorks had received a fax from Administrative Court in Rayon.

Congratulation we receive a decision and won an injunction for VT7 to STOP WORKING on their 27 story condo. This is not the final but we on are way to receive one which will limit construction to 14 meters or about a 3 stories tall building.

It's was a great day for all of Thailand, the Thai People and the farangs. Thailand is a strong nation with laws which give far treatment to all. Now I'm smiling with a great big beaming grin. Thinking of all the farang which said we did not have much change to win a court decision. What a great day to give thanks!

Am so very happy for Jomthien Complex. You are right, Thailand is a good country with laws to protect us all. Problem is that too many people won't fight for their rights. Now let's get the tape measures out and find out what else is illegal.

Recently I was speaking with someone who said that since the Administrative Court was set up justice can be got.

[Irene]

[

Recently I was speaking with someone who said that since the Administrative Court was set up justice can be got.

Hi,

You are spot on with the Administrative Court. They are fresh air to Thai system with quick justice for the aggrieved who receive unfair authoritarian oppression from the government or semi-government departments. The Court is the European ombudsman of Thailand even better than the US (see the film on Erin Bockovich with time-consuming justice).

The first surprise in Thailand was the Electricity Generating Authority of Thailand in attempting to privatise its entity and now had to put on hold for ages. The major benefit from the existence of the administrative court is that now the authority has to be more careful and giving more respect to laws, rules and regulations. I am so happy for small men.

This is the major set-back for all the condo developers in the beach area. Caveat Emptor!!! All the buyers and potential customers should beware!!! You can pay your deposits and instalments with hardships in getting the refunds and even no return of your money.

[Artisan]

That's the best news that I've had for a long time. I know that it's an injunction to stop working pending a final decision but it doesn't auger well for these greedy developers of these condominiums. I say 'greedy' because they take so much from the local community and put absolutely nothing back except "gifts" to the City Hall, the Police and the Immigration Office.

Three cheers for Jomtien Complex Condotel co-owners. Your persistence has paid off. :D

[oldhand]

So can anyone confirm that construction has stopped?

I am sitting within 30 yards of the construction site and can definitely confirm that all construction has stopped.

Could it be just for Songkran though???????

[Thaifan2]

Heard on another forum also ,that its been stopped by court injunction for breaking the 200 meter from sea rule .Whether just a temporary stop or permanent i don't know .

Many Condos towards the north of Dontang beach already break this rule . Jomtien Complex though is such a blatant case of their view been taken that i think they have a good chance of winning .

Edited April 10, 2007 by Thaifan2

[ThaiBob]

So can anyone confirm that construction has stopped?

I am sitting within 30 yards of the construction site and can definitely confirm that all construction has stopped.

Could it be just for Songkran though???????

A friend also confirmed construction has stopped with the gate padlocked and no security guard on duty. It is my understanding that there will be a hearing on this case in November. I suspect VT and/or the City of Pattaya would want to schedule an earlier date. Like other posters, I to salute the courageous action take by the foreign complaintants. It is no easy task, taking on City Hall in any country, let alone being a foreign guest in a third world country currently governed by a military junta. For me, I would be terrified of retribution of some kind, like an annual retirement VISA not being renewed or counter lawsuits. Why do I get the feeling this fair Administrative Judge might be "promoted" to some other jurisdiction. I think we have only heard the beginning of this case.

[Basil B]

Well done, hope that is the final decision.

Wonder what else will happen then? That planned 91 story Ocean 1 building is also within the 200m limit as far as I can recall, probably plenty of others as well Sails, Ocean Marina.....

Bruno's Foley (Ocean 1) will be just over 200m from the beach, but as the shadow from this structure is likely to stretch over the whole of View Tally Villas by 3pm in the afternoon are the View Tally Villas owners going to be the next to sue?

BB

[ThaiBob]

Oh dear tryimg to impose Western planning standards in Thailand again. Well certainly planning controls need to be improved but it will not happen overnight and I suspect most certainly not in this case. It is still "buyer beware". A little naive to buy a condo 200 mtrs from the sea and expect no building to block their view in the future.

Anyway how did they measure 200 mtrs from the sea ?, low tide or high tide ? or just an elastic tape ?

I’m Richard Haines who organized the co-owners at Jomthien Complex Condotel to take legal action against VT7 to stop construction.

The 200 meters from high tide law is that you can not build over 14 meters high. For more info of this group of 10 go to http://stopvt7.blogspot.com/

This regulation was issued for city planning to follow. No one ever tried to enforce this law in Thailand . Administrative Court is a new court formed in 1999 to fight corruption in government. See below and got to http://stopvt7.blogspot.com/ and read the case which was filed. They have a good legal team to represent them. See the Ministerial Regulation below.

Ministerial Regulation Issue 9 (B.E. 2521)

Issued under the Building Construction Control Act B.E. 2479

By the virtue of the Section 15 of the Building Construction Control Act B.E. 2479, te Ministry of Interior issued the following Ministerial Regulations:

1. No. 1 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 to be amended by the followings statement:

“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. 2520”

2. No. 3 of the Ministerial Regulation No. 8 (B.E. 2519) issued under the Building Construction Control Act B.E. 2479 to be amended by the following statement:

“No 3. Setting of 200 meters measured from 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 seaside in which the following constructions shall not be built:

Building of 14 meters higher than road level.

The Ministerial Regulation is hereby given on the date of twenty-third of November B.E. 2521 (1978).

General Lek Naewmalee

Minister of Interior

(Mr. Somchai Leelaprapaporn)

Civil Engineer Grade 7

Note: The reason issuing this Ministerial Regulation due to the updating of the construction control areas 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.

Copy taken from the Government Gazette No. 95 Section 157 dated 31 December 2521 (1978)

The Ministrial Regulation Section 2 seems typically Thai and is ambiguous in that it uses the word "seaside" which of course is a moving target. No wonder the confusion and trying to twist the intent of this regulation.

[midas]

Today about 4:00 I received a phone call from Markus Klemm. He told me that Asia LawWorks had received a fax from Administrative Court in Rayon.

Congratulation we receive a decision and won an injunction for VT7 to STOP WORKING on their 27 story condo. This is not the final but we on are way to receive one which will limit construction to 14 meters or about a 3 stories tall building.

It's was a great day for all of Thailand, the Thai People and the farangs. Thailand is a strong nation with laws which give far treatment to all. Now I'm smiling with a great big beaming grin. Thinking of all the farang which said we did not have much change to win a court decision. What a great day to give thanks!

Can I ask who presented your case in court ?

[nucag]

what about the por sods who have bought sub penthouses on level 26 etc etc.

[bmanly]

I have a friend who has bought off the plan in VT7. He says several units have already been sold off the plan and some have been sold off the side wings as well which weren't sold a few weeks ago. They have taken deposit money from buyers and some have made forward Monthly payments as well.

Whilst not taking any sides there will be a lot of innocent buyers of VT7 that did not know anything of this court injunction or anything else concerned with the case. My friend went to see them at VT7 and the staff there knew nothing about this court case (maybe conveniently). I would not like to see any of these people lose any of their deposits, some have put in quite a fair sum already.

I do not think think the VT people and City Hall are going to give up that easy, particularly as there is so much at stake now. I guess an ideal situation would be for all buyers in VT7 to get their money back and for the building to be greatly altered or stopped altogether but somehow I don't think this will happen. This is not over by a long shot.

[twix38]

What about clearing out the corrupt, bribe takers in City Hall, the Police and the Immigration Office.

It was business as usual between View Talay and City Hall...until now, just perhaps.

A very good sign and I hope it does not fall foul of an about (saving) face or any retribution of any kind.

[ThaiBob]

I have a friend who has bought off the plan in VT7. He says several units have already been sold off the plan and some have been sold off the side wings as well which weren't sold a few weeks ago. They have taken deposit money from buyers and some have made forward Monthly payments as well.

Whilst not taking any sides there will be a lot of innocent buyers of VT7 that did not know anything of this court injunction or anything else concerned with the case. My friend went to see them at VT7 and the staff there knew nothing about this court case (maybe conveniently). I would not like to see any of these people lose any of their deposits, some have put in quite a fair sum already.

I do not think think the VT people and City Hall are going to give up that easy, particularly as there is so much at stake now. I guess an ideal situation would be for all buyers in VT7 to get their money back and for the building to be greatly altered or stopped altogether but somehow I don't think this will happen. This is not over by a long shot.

The staff has been quickly retrained. They are still selling units off the plan. Contract holders should continue making monthly payments. If they lose the case all money will be refunded. They say that the City of Pattaya and VT has not yet presented it's case to the court and are confident of the outcome. All this from a friend who went to the VT office yesterday. They paint a very rosy picture.....perhaps they know something we don't.

[sriracha john]

Administrative Court orders halting of building in Pattaya

The Administrative Court in Rayong issued on Wednesday an injunction halting construction of a residential building that will block sea views of residents in a nearby condominium.

The court injunction noted that Pattaya City Council allowed building of View Talay Jomtien Condominium to proceed when it might have violated regulations protecting the rights of nearby residents.

The 10 complainants, all foreigners residing in Jomtien Complex Condotel, said Pattaya City Council wrongly granted construction permission for View Talay Jomtien Condominium.

They said the permission did not meet 1978 planning regulations and alleged that it would deprive them of their views of Jomtien Beach.

The court said the site of the condominium appeared to be less than the legally required distance of 200 metres from Jomtien Complex Condotel.

Regulations require building of 18 metres or higher to be more than 200 metres apart. The View Talay Jomtien Condominium is a 27-storey, 81-metre tall building.

Although the court has not ruled on the 200metre distance issue, it ordered an injunction and said the owners of the condominium would have to prove they were not violating the regulation.

- The Nation

[stopvt7]

Bangkok Post

PROPERTY / BUILDING REGULATIONS

Wednesday April 11, 2007

Court freezes View Talay condo project

SOMPORN THAPANACHAI

The Administrative Court in Rayong has issued an injunction against View Talay Jomthien Condominium (1999) Co Ltd to temporarily halt construction of its 27- storey condominium on Jomtien Beach in Pattaya.

The case was filed by 10 owners of units in the Jomthien Complex Condotel against Pattaya City officials and the View Talay developer. They complained that city officials illegally issued a construction permit for the company to build the high-rise in an area where the height limit was 14 meters.

The plaintiffs based their case on the 1978 ministerial regulation that prohibits buildings from exceeding 14 meters in height if they are situated 200 metres or less from the sea. They also said the new building would obstruct their sea view and redirect the wind flow, negatively affecting sanitary and living conditions. The current work on View Talay has also created dust and cracks in Jomthien Complex Condotel, said the plaintiffs

Therefore, they asked the court to revoke the construction permit and temporarily suspend work until a verdict is reached.

View Talay plans to have 912 condominium units in the project, sized between 48 and 245 square meters and priced between 2.2 million and 13 million baht. The project was offered on the market 18 months ago but the construction permit was issued on Nov 28, 2006.

On Monday, the Administrative Court granted the injunction to halt construction, saying that the plaintiffs and city officials disagreed on the starting point from which to measure the building's height.

The disagreement concerns whether the mean water level or the low-tide mark are used as the base measurement point for the building site.

Richard Haines, one of plaintiffs, said the court's decision could set a standard for developers and also set a precedent for Thailand.

He said the owner of his Jomthien Complex Condotel project, which was about 220 meters from the sea, earlier planned to build a low-rise hotel on the disputed plot but later sold the land, which was finally developed by View Talay.

''Thailand is a country of laws but no one has ever challenged [inappropriate building] before. Let's stand up and let's make sure that everyone understands that there is a law in Thailand and we are protected,'' said Mr Haines.

Someone asked who were the lawyers?

Asia LawWorks Ltd. on Thepprasit Rd

Markus Klemm and Amnat Thiengtham

Phone 38-411-591

or e-mail [email protected]

[Tammi]

200 meters from low tide is clearly ridiculous; 200 meters from mean tide not quite as ridiculous; 200 meters from high tide and allowing for surges is clearly the most sensible as this measurement will protect and save lives and property.

[thebounder]

While the decision of the Court to grant a temporary injunction is clearly a sensible one (if building was allowed to continue pending a full hearing, if it was subsequently stopped significant time and money would have been wasted, plus the applicants may have suffered irreparable structural damage), it is eminently possible that the building will still go ahead.

Although I am not familiar with Thai law on injunctions, in general terms interim injunctive relief is usually granted on a similar basis regardless of jurisdiction. The kind of factors that will have been taken into account are whether the applicants have shown a prima facie case and clearly they have.

However, upon such an application, the Court is not really concerned with any defences the Respondent may have, unless they are very obvious, that being something reserved for the full hearing. A Court would generally be far more concerned with whether the Respondent can be properly compensated in damages in the event that the injunction was improperly granted. In fact, the Applicants may have had to give an undertaking in damages to get the injunction, that would be quite common in jurisdictions with which I am more familiar.

In this case, it would seem to be quite straightforward to compensate the Respondent in damages for delay and thus, so long as the Applicants have a decent argument, the correct way to go would be to grant the injunction. It is a long way short of saying the Applicants are sure to win at final judgement.

[Weho]

I don't claim to know the full story here, but... the bottom line is the people in the existing two buildings should have got together and BOUGHT the land in front of them, to have control over development. You can't simply TRUST someone. The current and rightful owners of that VT parcel can do with it what they want, within whatever the law is determined to be. And the people in the existing buildings should have ASSUMED THE WORST from the beginning. The two existing towers were never "beachfront". No view anywhere is guaranteed, unless YOU OWN AND CONTROL THE PROPERTY/PROPERTIES in front of you.

Edited April 12, 2007 by Weho

[Irene]

While the decision of the Court to grant a temporary injunction is clearly a sensible one (if building was allowed to continue pending a full hearing, if it was subsequently stopped significant time and money would have been wasted, plus the applicants may have suffered irreparable structural damage), it is eminently possible that the building will still go ahead.

Although I am not familiar with Thai law on injunctions, in general terms interim injunctive relief is usually granted on a similar basis regardless of jurisdiction. The kind of factors that will have been taken into account are whether the applicants have shown a prima facie case and clearly they have.

However, upon such an application, the Court is not really concerned with any defences the Respondent may have, unless they are very obvious, that being something reserved for the full hearing. A Court would generally be far more concerned with whether the Respondent can be properly compensated in damages in the event that the injunction was improperly granted. In fact, the Applicants may have had to give an undertaking in damages to get the injunction, that would be quite common in jurisdictions with which I am more familiar.

In this case, it would seem to be quite straightforward to compensate the Respondent in damages for delay and thus, so long as the Applicants have a decent argument, the correct way to go would be to grant the injunction. It is a long way short of saying the Applicants are sure to win at final judgement.

Hi the bounder,

The Administrative Court has agreed that the Applicants were the affected parties of the coming View Talay high-rise buildings and based on the Applicant's one-sided presentation, in the Court's judgement, there is a prima facie evidence of the erroneous permit granted by the City Hall to View Talay. Therefore under our Thailand jurisdiction or even in most jurisdiction, any damages for the delay that may have caused View Talay (not the Respondent who is the City Hall) can hardly be blamed on the Applicants who rely on their legal rights to defend their property. It is the Court that requires time for due process of the law to listent to the other side's argument. Taking a legal case against officialdom is the citizens' rights and justifiable as proved by the issuance of the injunction. In this case, the Applicants were not ordered to pay any deposits to enable the Court to grant the injunction which is unheard of in Thailand.

So in short, those Jomtien co-owners can continue with their celebration during these festive days, the victory may be temporary but certainly a sweet one. If View Talay dares to continue with the construction despite the court's order, then their management and workers definitely would be put in front of the Court for jail sentences. They have to wait until the final deliberation of the Supreme Administrative Court. It will be a long-drawn wait for View Talay. If they want to seek for damages for the delay, then the party they should aim at is the City Hall who has issued a permit which is disputable. This is a great case for Thailand to show that not only justice shall be done but it shall also be seen to be done.

As to the future outcome, it is depending very much on the presentation as to the distance of the View Talay building to the sea by both legal counsels. However, the issued injunction is a good sign that the Applicants' case against the City Hall for the wrongful act is credible and now up to the City Hall to reveal under what basis they issued the building permit. So, again in short, the Jomtien co-owners can still be cautionary optimistic and should co-ordinate with their counsel closely in building up their case. It is quite a comfort to realise that the Respondent (the City Hall) has no financial benefits in winning or losing the case and if the Court favours the Applicants, they can always blame on the interpretation and/or misunderstanding.

With that background, I do not think the future for the co-owners is bleak at all and I would still cry out a big hurray for the co-owners!!! It is the View Talay and their customers that are not in an enviable position.

[thebounder]

While the decision of the Court to grant a temporary injunction is clearly a sensible one (if building was allowed to continue pending a full hearing, if it was subsequently stopped significant time and money would have been wasted, plus the applicants may have suffered irreparable structural damage), it is eminently possible that the building will still go ahead.

Although I am not familiar with Thai law on injunctions, in general terms interim injunctive relief is usually granted on a similar basis regardless of jurisdiction. The kind of factors that will have been taken into account are whether the applicants have shown a prima facie case and clearly they have.

However, upon such an application, the Court is not really concerned with any defences the Respondent may have, unless they are very obvious, that being something reserved for the full hearing. A Court would generally be far more concerned with whether the Respondent can be properly compensated in damages in the event that the injunction was improperly granted. In fact, the Applicants may have had to give an undertaking in damages to get the injunction, that would be quite common in jurisdictions with which I am more familiar.

In this case, it would seem to be quite straightforward to compensate the Respondent in damages for delay and thus, so long as the Applicants have a decent argument, the correct way to go would be to grant the injunction. It is a long way short of saying the Applicants are sure to win at final judgement.

Hi the bounder,

The Administrative Court has agreed that the Applicants were the affected parties of the coming View Talay high-rise buildings and based on the Applicant's one-sided presentation, in the Court's judgement, there is a prima facie evidence of the erroneous permit granted by the City Hall to View Talay. Therefore under our Thailand jurisdiction or even in most jurisdiction, any damages for the delay that may have caused View Talay (not the Respondent who is the City Hall) can hardly be blamed on the Applicants who rely on their legal rights to defend their property. It is the Court that requires time for due process of the law to listent to the other side's argument. Taking a legal case against officialdom is the citizens' rights and justifiable as proved by the issuance of the injunction. In this case, the Applicants were not ordered to pay any deposits to enable the Court to grant the injunction which is unheard of in Thailand.

So in short, those Jomtien co-owners can continue with their celebration during these festive days, the victory may be temporary but certainly a sweet one. If View Talay dares to continue with the construction despite the court's order, then their management and workers definitely would be put in front of the Court for jail sentences. They have to wait until the final deliberation of the Supreme Administrative Court. It will be a long-drawn wait for View Talay. If they want to seek for damages for the delay, then the party they should aim at is the City Hall who has issued a permit which is disputable. This is a great case for Thailand to show that not only justice shall be done but it shall also be seen to be done.

As to the future outcome, it is depending very much on the presentation as to the distance of the View Talay building to the sea by both legal counsels. However, the issued injunction is a good sign that the Applicants' case against the City Hall for the wrongful act is credible and now up to the City Hall to reveal under what basis they issued the building permit. So, again in short, the Jomtien co-owners can still be cautionary optimistic and should co-ordinate with their counsel closely in building up their case. It is quite a comfort to realise that the Respondent (the City Hall) has no financial benefits in winning or losing the case and if the Court favours the Applicants, they can always blame on the interpretation and/or misunderstanding.

With that background, I do not think the future for the co-owners is bleak at all and I would still cry out a big hurray for the co-owners!!! It is the View Talay and their customers that are not in an enviable position.

Hi Irene,

I don't pretend to know the details of the case and couched my thoughts very much in those terms, i.e using the words "may" and "generally"... In most jurisdictions, if you apply for an injunction, get it, but subsequently lose the case, you are often liable to compensate those who lost money as a result of the injunction. Are you sure that is not the case here? If it is eventually found that the permit was in fact issued correctly, I would be extremely surprised if the Applicants were not pursued for damages. After all, if the action was brought incorrectly and as a result someone lost money, why shouldn't they seek to recover it. If there was no down side to applying for injunctive relief, one would have thought parties would go for it very regularly. After all, why not, you wouldn't stand to lose anything even if you got it wrong.

I am very surprised to hear that the party subject to the order, i.e View Talay, are not a party to the proceedings. In the jurisdictions in which I have practiced, they would have to be made a party, a co-respondent alongside City Hall, although I fully appreciate that doesn't necessarily mean that is the case here in Thailand. I would be interested to know whether they have locus standi to address the Court at the final hearing. Ordinarily a non-party could not be heard.

I am not sure if you misunderstood my original post. I am not saying the Applicants are in a weak position, the truth is I have no idea as to the merits of the case. I was merely stating, as you appear to have agreed, that the hearing on whether to grant an injunction is essentially a one-sided matter and therefore should not necessarily be viewed as any kind of reliable guide as to the eventual outcome of the case.

[Irene]

Hi the bounder,

I don't pretend to know the details of the case and couched my thoughts very much in those terms, i.e using the words "may" and "generally"... In most jurisdictions, if you apply for an injunction, get it, but subsequently lose the case, you are often liable to compensate those who lost money as a result of the injunction. Are you sure that is not the case here? If it is eventually found that the permit was in fact issued correctly, I would be extremely surprised if the Applicants were not pursued for damages. After all, if the action was brought incorrectly and as a result someone lost money, why shouldn't they seek to recover it. If there was no down side to applying for injunctive relief, one would have thought parties would go for it very regularly. After all, why not, you wouldn't stand to lose anything even if you got it wrong.

I am so sure it is not the case here. That is why Tom, Dick and Harry have been suing the the Thai government or semi-government departments with relish without fear of any repercussions. Thai NGO's love to resort to this Court. Hence, the likelihood of a quick judgment on this Jomtien case is pretty remote. Currently, one NGO has alleged PTT for having privatised improperly its enterprise and wanted the Administrative Court to revert PTT back to the previous position of a state enterprise. The case has stunted the share price of PTT at the stock market. Can the PTT shareholders sue this NGO lot for damaging their shareholdings? Hardly. Your understanding is correct that with that background cases against the state are so inundated with frivolous cases. The idea of an administrative court is to facilitate citizens' claims against oppression of the state. The Administrative Court only accepts cases of citizens against the state and not citizens against citizens. It helps citizens to sue government departments with least formality. One can even write in a similar to a complaint letter. This new form of justice is recent and has influenced the government and semi-government departments in giving more respects to citizens' rights. It has improved the fair running of their power immensely.

I am very surprised to hear that the party subject to the order, i.e View Talay, are not a party to the proceedings. In the jurisdictions in which I have practiced, they would have to be made a party, a co-respondent alongside City Hall, although I fully appreciate that doesn't necessarily mean that is the case here in Thailand. I would be interested to know whether they have locus standi to address the Court at the final hearing. Ordinarily a non-party could not be heard.

It was viewed by the Applicants as a misdeed of the City Hall in granting the building permit to View Talay. The alleged erroneous deed was committed by the City Hall and not View Talay, so there is no point for View Talay to be a co-party to the case. Naturally, View Talay could be called as witnesses for the City Hall.

I am not sure if you misunderstood my original post. I am not saying the Applicants are in a weak position, the truth is I have no idea as to the merits of the case. I was merely stating, as you appear to have agreed, that the hearing on whether to grant an injunction is essentially a one-sided matter and therefore should not necessarily be viewed as any kind of reliable guide as to the eventual outcome of the case.

Your original post gave the impression that it would still be a long way for the Jomtien co-owners to win the case and also likelihood of having to pay View Talay for compensation if View Talay eventually wins the case.

Hearing of the injunction request is based on the potential sufferings of the Applicants and merits of the case and therefore the Respondent has no right to challenge the Applicants' filing. It is the judge who is to question on the presentation and makes his early decision either for or against the Applicants. It is definitely not a conclusive guidance on the final outcome but somewhat tilted at this early stage to favour the Jomtien co-owners.

I wrote this post because of your observations were truly far off the mark and feared of the alarm that the Jomtien co-owners could have suffered. I am a disinterested party but enjoy seeing fairness in our society.

[ThaiBob]

200 meters from low tide is clearly ridiculous; 200 meters from mean tide not quite as ridiculous; 200 meters from high tide and allowing for surges is clearly the most sensible as this measurement will protect and save lives and property.

Yes, of course, 200 meters from high tide is most sensible but this is Thailand. Forget the blocked views, construction noise and dust, and altered wind patterns. This case IMO hinges on the interpretion of an unclear ministerial regulation. If the City of Pattaya can show it has fairly and consistently applied it's interpretation (using the mean-tide mark?) for many years to this regulation then I would think the farang JC complaintants are SOL. What ever happens this regulation needs to be re-written clarified.

[stopvt7]

Hi the bounder,

I don't pretend to know the details of the case and couched my thoughts very much in those terms, i.e using the words "may" and "generally"... In most jurisdictions, if you apply for an injunction, get it, but subsequently lose the case, you are often liable to compensate those who lost money as a result of the injunction. Are you sure that is not the case here? If it is eventually found that the permit was in fact issued correctly, I would be extremely surprised if the Applicants were not pursued for damages. After all, if the action was brought incorrectly and as a result someone lost money, why shouldn't they seek to recover it. If there was no down side to applying for injunctive relief, one would have thought parties would go for it very regularly. After all, why not, you wouldn't stand to lose anything even if you got it wrong.

I am so sure it is not the case here. That is why Tom, Dick and Harry have been suing the the Thai government or semi-government departments with relish without fear of any repercussions. Thai NGO's love to resort to this Court. Hence, the likelihood of a quick judgment on this Jomtien case is pretty remote. Currently, one NGO has alleged PTT for having privatised improperly its enterprise and wanted the Administrative Court to revert PTT back to the previous position of a state enterprise. The case has stunted the share price of PTT at the stock market. Can the PTT shareholders sue this NGO lot for damaging their shareholdings? Hardly. Your understanding is correct that with that background cases against the state are so inundated with frivolous cases. The idea of an administrative court is to facilitate citizens' claims against oppression of the state. The Administrative Court only accepts cases of citizens against the state and not citizens against citizens. It helps citizens to sue government departments with least formality. One can even write in a similar to a complaint letter. This new form of justice is recent and has influenced the government and semi-government departments in giving more respects to citizens' rights. It has improved the fair running of their power immensely.

I am very surprised to hear that the party subject to the order, i.e View Talay, are not a party to the proceedings. In the jurisdictions in which I have practiced, they would have to be made a party, a co-respondent alongside City Hall, although I fully appreciate that doesn't necessarily mean that is the case here in Thailand. I would be interested to know whether they have locus standi to address the Court at the final hearing. Ordinarily a non-party could not be heard.

It was viewed by the Applicants as a misdeed of the City Hall in granting the building permit to View Talay. The alleged erroneous deed was committed by the City Hall and not View Talay, so there is no point for View Talay to be a co-party to the case. Naturally, View Talay could be called as witnesses for the City Hall.

I am not sure if you misunderstood my original post. I am not saying the Applicants are in a weak position, the truth is I have no idea as to the merits of the case. I was merely stating, as you appear to have agreed, that the hearing on whether to grant an injunction is essentially a one-sided matter and therefore should not necessarily be viewed as any kind of reliable guide as to the eventual outcome of the case.

Your original post gave the impression that it would still be a long way for the Jomtien co-owners to win the case and also likelihood of having to pay View Talay for compensation if View Talay eventually wins the case.

Hearing of the injunction request is based on the potential sufferings of the Applicants and merits of the case and therefore the Respondent has no right to challenge the Applicants' filing. It is the judge who is to question on the presentation and makes his early decision either for or against the Applicants. It is definitely not a conclusive guidance on the final outcome but somewhat tilted at this early stage to favour the Jomtien co-owners.

I wrote this post because of your observations were truly far off the mark and feared of the alarm that the Jomtien co-owners could have suffered. I am a disinterested party but enjoy seeing fairness in our society.

200 meters from low tide is clearly ridiculous; 200 meters from mean tide not quite as ridiculous; 200 meters from high tide and allowing for surges is clearly the most sensible as this measurement will protect and save lives and property.

Yes, of course, 200 meters from high tide is most sensible but this is Thailand. Forget the blocked views, construction noise and dust, and altered wind patterns. This case IMO hinges on the interpretion of an unclear ministerial regulation. If the City of Pattaya can show it has fairly and consistently applied it's interpretation (using the mean-tide mark?) for many years to this regulation then I would think the farang JC complaintants are SOL. What ever happens this regulation needs to be re-written clarified.

We file our court case the 12 of March and had a court hearing 28 of March and receive the protection of temporarily court injunction on 9 of April. Which stop the construction of View Talay Project 7. That is fasts! I heard dozen of times from farang what I was wasting my time organizing ten co-owners and raising funds for a court case. This court decision shows that Administrative Court applies the law without looks at ones nationality. Thailand is a country of laws and Administrative Court in Rayon applied the law fairy. The regulation is that any building over 14 meters tall (about 3 stories) is prohibited within 200 meters of the “sea shore”. There is other Thai law which states that “sea shore” is measured from “the high tide line.

Remember the admin court did not want to give a final decision because they investigates government agency for “c”. So they left this question open and can keep their investigation open.

In the final decision the line will be high tide, their many case which set high tide as the place to beginning to start measurements.

Richard