As Marina Developments and the boating industry progress in Phuket, and as other developments consider placing part of their project near or even in water, it is worth considering the legal procedures underpinning the principle of building into the waterline – always bearing in mind that the actual practice and implementation of these procedures can involve additional rules and regulations not prescribed by law.

The relevant laws that principally relate to this matter are based on the Thai Marine Navigation Code B.E. 2456 and the Ministerial Regulations B.E. 2537. It is not legal to build a building or structure in, adjoining to or encroaching on any river, waterway, swamp, dam or lake that the “public use to travel on” or “which is a sea of Thailand or which is a ‘sea beach’ (we can call this “waterline” for simplicity), if you do not have permission from the Marine Department.

The Marine Department therefore becomes the central focal point for permissions and liaison centre for a developer wishing to build a structure across the waterline. The three options for the location of an application are the Marine Department, Provincial Marine Office, and the Provincial Marine Branch Office.

Permission is further restricted to seven categories of structure:

1. Marina
2. Pier
3. Bridge
4. Pipe or cable
5. Dam
6. Dockyard
7. Pump management building

Persons who apply for a permission to construct these structures adjoining to or encroaching into the water must be the owner or the person that has a right to occupy the land that is adjoined to or encroaching on the waterline

Apart from these seven structures all other types are prohibited. There are special procedures of application for each type of structure.The only exception to this is a government building/structure or a building/structure for the government’s benefit.

There are further criteria that the Marine Department must consider before approval of construction permits. These specifications are as follows:

1. The type or position of the building or other structure that is adjoining to or encroaching on the waterline shall not make the water dangerous for navigation, and shall not change the course of the water or “affect the environment”. (An environmental impact assessment report is therefore required).

2. The building or other structure shall not be built in an area that a Marine Department announcement prohibits. Such an announcement has to be agreed by the Transportation and Communication’s Minister and must be announced in the Royal Gazette.

3. Permission is granted in respect of its necessity by considering the objectives of the use of the structure.

4.Permission for use of an area adjoining to or encroaching on the waterline shall not conflict with town planning and other relevant laws.

Timing

When the Marine Department has received all necessary documents (which is, of course, subject to guidelines but not an absolute definitive exhaustive application criteria) it is required to audit them within thirty days. In the event of a refusal of an application the Marine Department has to inform the applicant within 60 days after filing of the application.

If permission is granted, the license will be issued within 120 days starting from the date of the filing of the complete application. Upon obtaining the license, the building of the structure must start within twelve months from the date of the license or it may be terminated or void.

Two extensions to the twelve month period can be obtained by submitting an application for extension of the license. Each extension can be granted for 6 months respectively.

Summary

These rules and the law may be navigated by those who are familiar with them or those that conduct due diligence into the requirements in good time and in proactive preparation and planning of a development. But they do require an amount of consultation with the relevant government departments to avoid rejection of applications and delays.

Desmond Hughes is a partner in Belmont Limcharoen.
Tel: +66 (0) 76 342 882-4
Fax: +66 (0) 76 342 885
Mobile +66 (0) 9772 5077
desmond@belmontlimcharoen.com
www.belmontlimcharoen.com