The project is currently in dispute with the Supreme Administrative Court hearing an appeal by the project developer, Kata Beach Co Ltd, which claims the NorSor 3 Kor land deed presented as evidence of ownership of the land is valid.
The appeal follows the Regional Administrative Court in Nakhon Sri Thammarat ruling in Aug 2017 that the NorSor 3 Kor is invalid – and that land itself was protected forest land.
“We came here because there has been a complaint that The Peaks project is illegal construction. The Prime Minister ordered us to come to investigate the facts,” Gen Kittisak told a meeting held at the Department of Disaster Prevention and Mitigation Phuket office (DDPM-Phuket) headquarters located at the Provincial Hall complex yesterday morning, before making a site inspection of the project in the afternoon.
“Our examination is to focus on the legal aspects of the case, which so far is not clear. We need more details from inspecting the area, from which we will learn more than the details presented in the complaint,” he said.
“Construction of The Peaks project can continue for now, as the law permits, but we will investigate additional conditions that may see the construction project suspended,” he added.
Gen Kittisak also recognised the impact on people who have already bought units in the project if Kata Beach Co Ltd loses its appeal.
“Regarding the impact on customers who bought a condominium in the project, the Phuket District Chief has agreed with us that he will talk to the owner of The Peaks project about how to manage it if the Supreme Administrative Court decides to cancel the project’s construction permit,” he said.
“Regarding the impact on the environment in the area, before issuing a construction permit for the project, the Karon Municipality made an agreement with the owner of The Peaks project that if any part of the project breached the law the owner of The Peaks project agreed to restore the environment back to its original state,” Gen Kittisak added.
“But before all this, we have to wait for the decision of the Supreme Administrative Court,” the general said.
Repeated calls by The Phuket News to the only contact number featured on The Peaks Residence official website (see here) have gone answered, but one agent who sold units in the project told The Phuket News today (Mar 15) that the entire project had already sold out.
However, the agent, who asked not to be named, was not willing to divulge any further details.
No materials presented yesterday gave any indication of the total current value of the project, though reports in the Thai media have estimated the sales volume at more than B2 billion.
Suttichai Bunyadsil, an expert architect with the Public Works Division at Karon Municipality, which issued the building permit for the project, told The Phuket News, “We issued a construction permit by considering the documents submitted with the application. The documents included evidence of land ownership, construction drawings and the EIA (Environmental Impact Assessment) report.
“The EIA must be approved by committee involving all departments. If the EIA is not certified, we will not approve a construction permit, and The Peaks project has all the documents.
“The Peaks project submitted a construction permit request at the end of 2017 and they received a construction permit on Feb 19, 2018,” Mr Sittichai said.
“When The Peaks project requested permission for construction, at that time we did not know that the Administrative Court had ordered for the land deed to be revoked.
“Because The Peaks project provided the complete documents as specified by the Building Control Act, we checked the documents and we issued a construction permit,” he said.
“We learned that the Administrative Court ordered to revoke the NorSor 3 Kor only after someone complained to the Phuket Governor on Mar 7, 2018, and we therefore issued a letter to suspend construction of The Peaks Residence project on Mar 12, 2018.
“But the owner of the project said that the ruling of the Administrative Court had not yet been completed and that they could continue to use the land.
“The project owner submitted a letter to Karon Municipality on April 2, 2018 requesting the use of the land in accordance with the law as the case had not ended. We allowed them to continue on Apr 10, 2018,” Mr Suttichai explained.
After that building permit expired Feb 18 this year, Karon Municipality issued a new permit to allow construction to continue.
“We renewed the permit because according to the Building Control Act, when a permit expires and the holder submits a request for a renewal, they can continue construction – except when the construction is not same as defined in the building permit, only then can we suspend construction.
“We checked at The Peaks project again and the construction was the same as they had applied for, and the owner of The Peaks project explained that the Administrative Court still had yet to hand down its decision. Until then, they can continue to use the land,” he said.
Another aspect of one complaint was that Kata Beach Co Ltd had registered capital of only B1 million, Mr Sittichai explained yesterday.
“So the concern was that the company would not be held responsible if something happens,” he said.
“We told the owner of the project about the complaint, and the owner agreed that if that should happen they would dismantle the whole project and plant new trees to replace those cut down to make space for the project,” he said.
“They also agreed to pay a B3 million deposit to Karon Municipality in case that money needed to be used to make any corrections to the project,” he said.
“But now we have to wait for the decision of the Supreme Administrative Court. Whatever the court decides, we must do that,” he assured.
HAPPY TO OBLIGE
Following the site inspection by Gen Kittisak and his team, Taweechai Leesai, lawyer for The Peaks Residence, explained to reporters that his team were not informed in advance of Gen Kittisak’s visit and that they did not have the correct documents to present to him yesterday.
“We didn’t know Gen Kittisak was coming to inspect the project, we therefore could only explain to him our position in words.
“But if he wants documents related to the construction of the project, we are happy to clarify everything,” he said.
“We know that the construction of this project is of interest, and we are happy to answer questions,” Mr Taweechai said.
Also present yesterday was Sombat Atiset, President of the Katathani Hotels Group and founder of the Local Love Foundation, which filed the formal complaint against the project.
Of note, the Katathani Phuket Beach Resort, the mainstay of the Mr Sombat’s family-run Katathani Hotels Group, is located along the Kata Noi beachfront, downhill from where the The Peaks Residence is under construction.
“The Local Love Foundation was born from me and about 50-60 villagers. Our group has taken care of the environment (in the Kata area) together with the community for over 10 years,” Mr Sombat told The Phuket News.
“Our goal is to preserve the Kata Noi area as a tourist attraction, to create sustainable tourism and create careers for people in the area.
“Together, we clean the beach, and we make sure that no polluted water flows down into the bay. We see that the environment is the most important factor for tourism, therefore we have to love and help,” he said.
“We are worried that the environment will be damaged after The Peaks Residence project is completed because the project has more than 400 units. It will have to use a lot of water, and will generate more than 600 cubic metres of wastewater per day,” Mr Sombat said.
“Where will the wastewater go, especially in the dry season? The wastewater will flood the beach water (with contaminants). The Peaks project is being managed, but we worry that it is not being managed well enough, and wastewater may end up spoiling the beach or flowing into ponds the villagers depend on,” he added.
Mr Sombat also highlighted the fundamental issue of the legal status of the land on which the The Peaks Residence is literally being built on.
“They cannot build in that area because of the slope is too steep and it is still a protected forest reserve. How can this project be built?” he posed.
Mr Sombat explained that the Local Love Foundation began its campaign against construction of The Peaks Residence in March 2017 after asking about the EIA for the project.
During a protest at Kata Noi on Feb 22, Mr Sombat explained that the area is under the protection of Forest Protection Unit at PorKor 2 (Phuket), Forest Resource Management Office of Special Operations Unit 43, Forest Management and Control Forest Protection and Fire Control of Royal Forest Department.
He also explained that the project is being built on land claimed under NorSor 3 Kor No. 1863.
“But the NorSor 3 Kor was issued in 2012, and even in that year no NorSor 3 Kor could be legally issued for that land,” he said.
“The Regional Administrative Court in Nakhon Sri Thammarat on August 31, 2017 ordered for NorSor 3 Kor No. 1863 to be revoked and for the land to be returned to the people, but still construction continues without fear of the law,” Mr Sombat said at the gathering.
Speaking yesterday, Mr Sombat explained that he had filed the complaint with ISOC.
“I went to office of Internal Security Operations Command in Bangkok on Mar 4 and today (Mar 14) Lt Gen Kittisak has come to Phuket to inspect the construction of The Peaks Residence project,” he said.
“I feel good that the military has come to see the area because the military does not have a vested interest and can be a middleman (in resolving the problems),” he added.
“Some people think that I am protesting the project because of a conflict in business. I confirm that this is not true. I have never been interested in that land and (before) I had know idea who the owner of The Peaks project was,” Mr Sombat said.
Wanchat Chunhatanom, a senior prosecutor at the Phuket Public Prosecutor’s office, which operates under the Office of the Attorney General, noted the importance of first checking the legal status of the NorSor 3 Kor claim to the land, but also called for leading officials to “talk” about the project.
“We must give fairness to both parties, the people who filed the complaint and the project owner, and we must admit that the highest court has not yet delivered its judgment.
“At the same time, we must take care of consumers who have bought units in the project. I urge Gen Kittisak to not wait and to call the project owner to talk, because I believe that the project owner would like to speak in detail (about the project),” he said.
Mr Wanchat, as the provincial prosecutor assigned to the case, highlighted his role in the proceedings.
“First, we must make sure whether the NorSor 3 Kor is legal or not, and we must check the legality of the construction permit issued by Karon Municipality, because it was issued on the basis of the NorSor 3 Kor,” he said.
Another aspect Mr Wanchat is to investigate is what form of legal ownership buyers were told they would have over their units.
“All condo unit ownership deeds must be based on the land being issued a Chanote title. If the land for the project has not been issued a Chanote, then project must be registered as a hotel or other accommodation building (with only occupancy rights agreements issued to unit 'owners'),” he said.
“The project owner must inform consumers of the full facts,” he said. “We must inform the Phuket Governor, who is the chairman of the committee that oversees the Phuket office of the Consumer Protection Board, to call the owner of The Peaks Residence project and check whether or not they revealed all the facts to buyers.
“We must be fair to them if they did explain that the deed for the project was only a NorSor 3 Kor and that its legal status was still under review – and buyers still chose to buy units in the project.
“But if this was not made clear, then we have to talk to them in detail about this later,” he said.