วันพุธที่ 5 กรกฎาคม พ.ศ. 2560

Translation NCPO Order relation to the Navigation in the Thai Water Act by Natthanicha Lephilibert

ORDER OF THE HEAD OF THE NATIONAL COUNCIL
FOR PEACE AND ORDER
NO. 32/2560
RE: REMEDIES IN THE CASE OF CONSTRUCTION OF BUILDINGS OR
ANY STRUCTURE ENCROACHING INTO WATERWAYS

                       

                        Since the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017) has come into force from the 23rd of February B.E. 2560, unpreparedness in the law enforcement of State officials and understanding of the public to comply with the law have appeared. Therefore, in order to ensure that the enforcement of law on the navigation in the Thai waters does not severely affect the overall society in respect of conducting professions particularly in the agricultural sector and the living of people along the river which are the traditional community way of living including the effect on the persons subject to the law enacted in B.E. 2515 and B.E. 2537, it is necessary to extend the time period for the execution of the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017) to ensure that the enforcement of law minimally affects the conditions and ways of living of the people resulting in the benefit to the economy system and public order.

                       By virtue of section 265 of the Constitution of the Kingdom of Thailand in conjunction with section 44 of the Constitution of the Kingdom of Thailand (Interim) B.E. 2557, the Head of the National Council for Peace and Order, with the approval of the National Council for Peace and Order, hereby issues the Order as follows:

                      Clause 1.         For the purpose of controlling construction of building and any structure encroaching into waterways, within sixty days as from the date this Order has come into force, an owner or possessor of a building or any structure established prior to the date the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017) has come into force which violates section 117 of the Navigation in the Thai Waters Act B.E. 2456 (1913) amended by the Navigation in the Thai Waters Act (No. 14), B.E. 2535 (1992) or a person obtaining permit under section 117 of such Act who constructed a building or structure but failed to comply with the permission granted shall notify the Marine Department of the violation or structure which is not complied with such permission. In this regard, the person who notifies within such prescribed time period shall not be liable to criminal penalty and administrative fine for the offence committed before the 23rd of February B.E. 2560 (2017).

                     Clause 2.         Upon the completion of the execution under clause 1, such person shall submit a document or evidence illustrating the possession or permission to construct the building or structure for the consideration of the Marine Department within one hundred and eighty days as from the date of notification. The Marine Department shall issue an order, in writing, to grant permission or not to grant permission within one hundred and eighty days as from the date of receipt of complete document and evidence.
                        Rules, procedures and conditions for the notification under clause 1, submission of a document or evidence for consideration of granting permission and procedure for consideration under paragraph one shall be as prescribed in a Notification by the Minister of Transport which shall consider the time period for construction of building encroaching into waterways, effect and burden on an owner or possessor, characteristics and safety of the use of building encroaching into waterways, way of living of the people and community in the locality and impact on water, environment or public interest in water transportation.
                        In considering the permission for building or any structure encroaching waterways constructed prior to the date the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017)  has come into force and the prescription of the characteristics of building and encroachment which may be permitted under clause 1, the Marine Department shall apply the rules and procedures prescribed in the Ministerial Regulation No. 63 (B.E. 2537) issued under the Navigation in the Thai Waters Act B.E. 2456 (1913) mutatis mutandis except in the case where such building or any structure was constructed prior to the enforcement of the Ministerial Regulation, the Marine Department shall consider permission in accordance with the rules as prescribed in a notification by the Minister of Transport.
                        In the case where there is a problem in applying the rules and procedure under paragraph three and it is necessary for public interest or benefit of a governmental agency the Marine Department shall propose to the Minister of Transport to make a decision or order as deemed appropriate. The decision of the Minister of Transport is final.

                        Clause 3.         In the case where the Marine Department issues permission order with the correction or order not to grant permission and to demolish such building or object, an owner or possessor of such building or structure shall complete to correct or demolish such building or structure within the time period as prescribed by the Marine Department. In this regard, it shall not be less than thirty days but shall not exceed one year unless otherwise ordered by the Court. In the case where the owner or possessor of a building or structure fails to correct or demolish within the time period as prescribed by the Marine Department, such person shall be liable under section 118 of the Navigation in the Thai Waters Act B.E. 2456 (1913) amended by the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017).

                        Clause 4.         In the case where a building or other structure may be permitted under 118 bis paragraph five of the Navigation in the Thai Waters Act B.E. 2456 (1913) amended by the Navigation in the Thai Waters Act (No. 14) B.E. 2535 (1992), the Marine Department may issue a permit to the owner or possessor and upon the permission, such person shall, for the time being, pay an annual remuneration in accordance with the rate as prescribed in the Ministerial Regulation No. 16 (B.E. 2537) (1994) except if it is other cases as prescribed in a Notification by the Minister of Transports until the Ministerial Regulation prescribing the procedure and rate for remuneration issued under section 117 bis paragraph one of the Navigation in the Thai Waters Act B.E. 2456 (1913) amended by the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017) is promulgated.

                        Clause 5.         No competent official or State official related to the execution of the law or this order shall abuse his or her position or act or fail to act under his or her position being prejudiced in favour of assets or other benefits in order to obtain assets or other benefits for himself or herself or other persons. In the case where it appears that an act of nonfeasance, negligence or omission of any competent official or State official has been committed, the Commander shall have the power to initiate a civil, criminal and administrative case against such competent official or State official expeditiously and strictly.

                        Clause 6.         An owner or possessor of building or other structures who has notified the Marine Department under section 18 of the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017) and the owner or possessor, prior to the date the Navigation in the Thai Waters Act (No. 17), B.E. 2560 (2017) has come into force, who has notified prior to the date this Order has come into force, shall be a person who notifies under clause 1 and shall proceed to undertake an act under clause 2 of this Order.

                        Clause 7.         In the case where it deems appropriate, the Prime Minister or Council of Ministers may propose to the National Council for Peace and Order to amend this Order.

                        Clause 8.         This Order shall come into force as from the day following the date of its publication in the Government Gazette.

                                                            Given on the 4th of July B.E. 2560 (2017)

                                                                        General Prayut Chan-O-Cha

                                                    Head of the National Council for Peace and Order

(c)2017 Natthanicha Lephilibert, Krisdika Counsel, Professional Level, Office of the Council of State, under her own capacity. (aneksomboonphon.natthanicha@gmail.com)


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