The Supreme Administrative Court's ruling last Thursday, which revoked the receipt of notification of intention for construction or modification of the building granted to the already-finished-and-transferred 50-storey Ashton Asoke condo project, caused a stir among the public, leaving people curious about the case and its potential outcome.
Q: WHAT IS THE BACKGROUND OF THIS CASE?
According to the Facebook page of House & Condo Lawyer (www.facebook.com/housecondolawyer), the plot of land on which Ashton Asoke is situated previously had a section adjacent to Asok Montri Road under the ownership of the previous landowner.
However, this area was expropriated for the construction of the Blue Line.
Consequently, the remaining plot was left with no exit to Asok Montri Road, leading the landlord to file a lawsuit seeking an entrance-exit.
Eventually, the landlord obtained "a necessary way of 6.4 metres in width" on the south side of the plot.
When Ananda Development Plc, developer of Ashton Asoke, acquired the plot on Jan 23, 2014, it was entitled to construct a low-rise tower with a height not exceeding 23 metres or no more than eight storeys, as the plot only had a 6.4-metre-wide access way.
According to the Building Control Act, for sites of high-rise buildings or extra-large buildings with a total area of more than 30,000 square metres, one side of the land exceeding 12 metres that is adjacent to a public road should have a roadway width of no less than 18 metres. In addition, public roads shall have a roadway width of not less than 18 metres.
At the time, Ananda applied for a construction permit to build a seven-storey condo tower with 23 units, along with office spaces and parking facilities. The total area was 10,013 sq m, including 213 parking spaces.
Ananda then proposed to the Mass Rapid Transit Authority of Thailand (MRTA) relocating the original necessary way of 6.4 metres in width to the north side of the plot and expanding the width to 13 metres.
In return, the developer offered compensation and construction of parking facilities worth 97 million baht to the MRTA, which approved and issued a beneficial-use letter on July 4, 2014.
This could allow the construction of a large building with a total area exceeding 30,000 sq m, in accordance with the Building Control Act, which requires one side of the land to be at least 12 metres in length and adjacent to a public road with a minimum width of 18 metres.
On Feb 23, 2015, Ananda filed a request to construct and modify the original application for a 50-storey condo building with 783 units. The submission required several revisions to the details, which were addressed and amended a few times.
Each time, a "receipt of notification of intention to construct, modify, demolish or relocate buildings" was issued.
If there are no further objections or necessary amendments, the developer will receive "a receipt of notification for construction, modification or demolition of buildings" in order to be able to proceed with the project.
On June 2, 2016, the Stop Global Warming Association and 15 residents living near the project site filed a lawsuit with the Central Administrative Court.
On Feb 28, 2018, Bangkok Metropolitan Administration (BMA) refused to issue a building construction certificate for Ashton Asoke, which is the final step required before the ownership transfer can be registered. As a result, the project was unable to transfer ownership to customers as specified in the purchase and sale agreement.
March 26, 2018 was the deadline specified in the first lot's purchase and sale agreement for the completion and handover of the condo units. However, they still could not be transferred as they had no building construction certificate.
As a result, the developer offered customers three options: to receive a refund of the down payment with interest, to exchange their units with another project developed by Ananda, or to wait until the transfer became possible. It turned out that 20%, or 170 units, expressed their intention to request a refund.
The momentum moved in favour of buyers and developers on June 4, 2018, when the adjudicating committee issued an order to "revoke" the previous instruction of the local official who did not issue the building construction certificate for the project.
Shortly afterwards, the unit transfers got unlocked for the first time as the building construction certificate was issued for the Ashton Asoke on June 11, 2018.
The turning point happened again three years later, as the Central Administrative Court issued a ruling on July 30, 2021, to revoke "the receipt of notification of intention for construction, modification, demolition and relocation of building" and "the receipt of notification for construction, modification, demolition and relocation of building" totalling four copies, with retrospective effect.
Last Thursday, the Supreme Administrative Court issued a ruling to uphold the withdrawal of the construction permit for Ashton Asoke, following the request made by the Stop Global Warming Association.
Srisuwan Janya, the association's president, and 15 others filed a lawsuit against the director of the Watthana District, five individuals and Ananda MF Asia Asoke, which is a joint venture firm between Ananda and Mitsui Fudosan, a Japanese developer.
Q: WHY WERE THE RECEIPTS REVOKED?
According to the court's ruling, the plot is unable to have an extra-large building because it does not have at least one side at least 12 metres long and adjacent to a public road with a minimum width of 18 metres, in accordance with the Building Control Act.
Although Ananda has the letter from the MRTA granting permission to use part of the MRTA's plot with a width of 13 metres as an entrance-exit to Asok Montri Road, it is unable to include this letter as a part of its plot to submit for the construction of Ashton Asoke.
The court elaborated that the plot did not belong to Ananda but to the MRTA, which obtained it through expropriation. Expropriated land is designated for public use, not for private sector use.
In addition, the MRTA also reserves the right to change or amend the position of the permitted land, reduce the size of the permitted land or take any action affecting all or part of the land, for which the permittee cannot claim compensation.
Considering this MRTA regulation, the court observed that the entrance-exit of Ashton Asoke to Asok Road may be changed or rendered unsuitable for use as an access point for fire engines as long as the project exists.
"This plot will not encounter any issues if the land is expropriated by the Department of Highways or BMA because they have regulations for road connections," said Kanyapas Tantivatanasatien, property lawyer and consultant at law firm Prompt Assist, the owner of the House & Condo Lawyer Facebook page.
However, if the land is expropriated by MRTA, the State Railway of Thailand or the Expressway Authority of Thailand, there may be problems. Some land expropriations result in the land becoming inaccessible or lacking road connections.
As a result, landowners may need to file a lawsuit to seek a necessary entrance-exit. But these organisations have no regulations for road connections, so landowners may need to rent the land to use as an entrance-exit, which cannot be used to apply for land allocation or construction of a building, Ms Kanyapas said.
Q: WHAT WILL HAPPEN IN THE AFTERMATH OF THE RULING?
Ms Kanyapas said the court's ruling will invalidate all permits and licences obtained after the issuance of those receipts. They include the construction permit, building utilisation licence and condo title deed.
"In practice, these documents are not automatically revoked until someone, usually the plaintiff, requests it," she added.
Two days ago (July 31, 2023), the BMA said it would revoke the construction permit for Ashton Asoke and also announced a guideline that there was no requirement to demolish the project.
In addition, the developer has the option of applying for a new construction permit. However, the application for the new permit is contingent on making amendments to the entrance-exit design of the building.
"It will be difficult for Ashton Asoke to be demolished, considering that a large number of people, or at least 688 unit owners, will be impacted," said Ms Kanyapas, also known as Lawyer Vivian.
"Unit owners at Ashton Asoke should assert their consumer rights by sending a notification letter to the project's developer and seeking refunds from them," she suggested.
Furthermore, individuals who have acquired a home loan from a bank and are currently making repayments are not obliged to continue with the instalments.
